When I got up in the middle of the night, as I often do, I read on my phone that the New York Times employees union was calling a strike. They asked readers in support of their efforts not to do the daily crossword puzzle or WORDLE puzzle online. This is one of the greatest sacrifices I have ever been called on to make but my convictions are firm and I know which side of the barricade I stand on so, gritting my teeth, I have complied.
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380 comments:
«Oldest ‹Older 201 – 380 of 380LFC wrote:
"I actually think there are some valid considerations of policy and constitutional law on both sides of this case..."
As do I which is why, absent actual cases, we have a ripeness issue. It seems some of us see "speech" in this case as incidental, Marc doesn't.
Without actual enforcement as a basis for litigation, who knows? I believe this case, handled in this matter, is one step in what will be, as with campaign finance and voting rights, a return to a world we thought we left behind.
Marc, I was referencing this:
"21-476 303 CREATIVE LLC V. ELENIS
DECISION BELOW: 6 F.4th 1160 GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER APPLYING A PUBLIC-ACCOMMODATION LAW TO COMPEL AN ARTIST TO SPEAK OR STAY
SILENT VIOLATES THE FREE SPEECH CLAUSE OF THE FIRST AMENDMENT."
The petition for cert also asked the court to consider if Smith should be overruled.
s. wallerstein,
I ma not the one who initiated the attacks on me and on Ms. Smith. And I gives and good as I gets,
s. wallerstein,
I am not the one who initiated the attacks on Ms. Smith and myself. And I gives as good as I gets.
s.w. why not ask for a group vote on the matter--never trust anyone's own self-assessment.
Comments don't seem to appear here, although they do in the emails.
Anonymous,
No one's self-evaluation is entirely accurate, but some people have more sense of themselves.
Marc is the typical school bully who insults and disqualifies everyone, but when someone
hits back, victimizes himself and turns into (to use the term we used in the 50's in my school days) a cry baby.
All of those who regularly comment here, except Marc, are invariably polite. Eric (in the beginning of this conversation) even searched for a less negative term than "homophobe" in order to characterize someone like Marc, out of respect for Marc. It may be that some Anonymous comment (I can't keep track of how many there are) has insulted Marc, but no one who comments here regularly has insulted Marc, except me, because I finally got fed up with Marc's abuse and verbal bullying.
s.w.
The comments do appear, you have to hit "newest" at the bottom for them to show up.
It is being reported on Michigan news tonight that a pro-life clinic was vandalized, its windows smashed, and anti-prolife graffiti was spraypainted on its walls. The home of the administrator of the clinic was also vandalized. I believe that the Dobbs decisions was erroneous, but the intolerance being exhibited by certain individuals on the left is despicable.
And, by the way, s. wallertein. I am not the one who initiated the uncivil discussion. It was initiated by commenters accusing Ms. Smith of "gay bashing" and accusing me of being a homophobic bigot. Well, I gives as good as I gets.
To Michael re 3:39 comment:
Your reconstruction of my basic point about the Smith case is correct: I do not think requiring her to serve the gay couple by designing a website for them = requiring her to express approval of gay marriage.
Similarly with the anti-vivisectionist website: Requiring a website designer to design a website advertising the when and where of a vivisection does not = requiring him or her to express his or her own approval of vivisection.
However, the analogy may fall down on certain details: Ms Smith wants to set up a business that designs websites for weddings. Gay weddings fall under that rubric. What sort of website business does Marc have in mind for his anti-vivisectionist analogy? Perhaps a site that notifies the interested public of medical procedures? surgical procedures? what? The analogy is at best strained.
David Zimmerman,
No, the analogy is not strained. The web site designer who is opposed to the practice of vivisection, were s/he required to design a website for an organization which supports vivisection practices, even if all the website does is advertise where and when the organization meets, would intrinsically be approving of the practices which the website designer believes are unethical. If a state government required such a website developer to create such a website against his/her will – which no state could constitutionally require – it would constitute unconstitutional compelled speech. I can hear you saying, “So, Susselman, does that mean if a website developer creates a website for a pizza parlor, it is intrinsically approving the purchase and consumption of pizza?” No, of course not. The difference between the vivisection website and the pizza parlor website, or the shoe store website, or the barber shop website, is that the practice of vivisection necessarily entails a moral/ethical dimension that is not involved in a pizza parlor, shoe store, or barber shop. Similarly, for Ms. Smith, there is an intrinsic moral/ethical dimension involved in same-sex marriage due to her religious belief. I do not share her religious beliefs; you do not share her religious beliefs; s. wallertein does not share her religious beliefs; etc. But government may not force Ms. Smith to engage in speech which inherently is contrary to her religious beliefs in order to engage in a wedding announcement web design business in the State of Colorado.
And s. wallerstein, it is not I or Ms. Smith who are the bullies here. The bullies are you and David Zimmerman, and the rest of your intolerant group, who insist that in order for Ms. Smith to create wedding invitations for hetero-sexual couples, she must also do so for same-sex couples, even though this is contrary to her religious beliefs, or she will not be allowed to engage in her business.
Marc,
At one point above, maybe a week ago or so, you said that you were going to read and to answer the arguments put forth in this case by Professor Tobias Barrington Wolff, but you never have.
You claimed that you were too busy to read them then, but you've had a lot of time since then. For someone with "no time", you put an incredible amount of time and energy into answering and insulting us here.
I believe that many of us would like to see how well your unquestionable debating skills (unfortunately linked to the personality issues which I've pointed out recently) do up against a first-class pro like Professor Tobias Barrington Wolff.
s. wallerstein,
I am in fact in the process of writing my analysis of Prof. Tobias Wolff's amicus brief. It will be several pages long, and I will post when I have finished sometime after 12:00 A.M.
I was wondering where Reinhold Nieburh and Paul Tillich would stand on this issue. I am quite confident that they would both agree that same-sex marriage was not sinful. I am also quite confident that they would agree that compelling Ms. Smith to engage in speech which celebrates same-sex marriage contrary to her erroneous belief that it is sinful would itself be immoral.
I am sure you all surmised that the last comment addressed to David Zimmerman was submitted by me. How it got attributed to Anonymous, I have no idea.
s. wallerstein,
I thought you were disengaging because you aren't interested in participating in highschool arm-wrestling.
;-)
Marc Susselman,
When you get a free moment, would you please quote the passage in which someone here accused you of being a "homophobic bigot." I admit I have not pored over every comment in the discussion.
Eric,
On December 5, at 11l29 A.M.. Anonymous told me to STFU.
On Dec. 6, at 12:24 P.M., GJ repeated Anonymous's demand, telling me to STFU.
On Dec. 6, at 4:05 P.M., GJ called me a "detestable bigot."
I had, contrary to my promise in an earlier thread, decided to put off posting my analysis of Prof. Talbot Wolff’s amicus brief in large part out of respect for his father, who has every reason to be proud of his son and his academic and professional achievements, as well as supportive of his son’s personal life-style. Moreover, Prof. Talbot Wolff and his constitutional writings are not chopped liver – he is a graduate of a prominent law school, and a professor of law at prominent Ivy League law school. That said, his academic cachet does not, contrary to Eric’s intimation that I must not know what I am talking about if I differ with Prof. Wolff’s views on the Lorie Smith appeal, place his amicus brief beyond criticism. So, in light of the numerous comments that have been posted criticizing my position, I have decided not to abstain from posting my analysis of his amicus brief on this blog.
I preface the below analysis with the following: I believe the Obergefell decision was correctly decided, that a state government may not, consistent with the U.S. Constitution, prohibit same-sex couples from obtaining the legal status of being married. I believe that people of the same gender have the same right as heterosexual couples to fall in love and to celebrate their love by declaring marriage vows. I firmly disagree with Lorie Smith’s religious convictions. Further, I believe that businesses can be prohibited from refusing to offer their services to same-sex couples based alone on their being same-sex couples. I nonetheless believe that Lorrie Smith has a constitutional right to engage in the business of creating wedding announcements for heterosexual couples only, and to refuse to create such announcements for same-sex couples, and that the Colorado statute which would prohibit her from doing so is unconstitutional as applied to her. The analysis which I offer below is rather long and somewhat technical, in terms of its discussion of legal and constitutional doctrines, which will not interest most of you. You can ignore it, disregard it, delete it from your computer, even print it, cut it up, burn it, or use it as toilet paper if you are so inclined – just please refrain from sending the product to me in the mail.
In his amicus brief, Prof. Wolff offers the following arguments in support of his position that the Colorado statue at issue, the CADA, may constitutionally preclude her from offering to create wedding announcements for heterosexual couples, but not same-sex marriage couples:
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1. In his first argument, Prof. Wolff makes the point that commercial speech, which he maintains Smith’s website business constitutes, does not enjoy the same scope of 1st Amendment protection as non-commercial speech. He states, “When government enacts evenhanded laws that regulate the conduct of all businesses, no First Amendment scrutiny is required.” He cites as an example of this constitutional principle the Supreme Court decision in Hishon v. King Spaulding, 467 U.S. 69 (1984), in which a female attorney was terminated by a law firm after she failed to make partner. The attorney filed suit against the law firm, accusing it of engaging in sex discrimination in violation of Title VII. The law firm asserted, among its defenses, that application of Title VII to its non-promotion decision “would infringe constitutional rights of expression or association.” This was a ridiculous, absurd defense, which the Court dismissed outright. Title VII regulated the law firm’s conduct, not its speech. There was absolutely no element of speech involved in the law firm’s decision to discriminate against the female attorney by refusing to promote her. What was being regulated was the law firm’s conduct, exclusively, This case is a straw man selected by Prof. Wolff, and has absolutely no bearing on the Lorie Smith case.
In making this argument, Prof. Wolff ignored the numerous decisions by the S. Ct. relating to commercial speech and holding that even commercial speech, depending on the circumstances, is entitled to First Amendment protection. For example, in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the S. Ct. held that the Federal Alcohol Administration Act, which was interpreted to preclude the Coors brewing company from stating on its beer labels the alcohol content of the beer, in order to prevent alcohol “strength wars” among brewers violated Coors’ right to free speech under the First Amendment. Similarly, in Central Hudson Gas Elec. v. Public Serv. Comm’n, 447 U.S. 557 (1980), the S. Ct. held that a regulation enacted by the New York Public Service Commission which banned electric utilities from advertising to promote the use of electricity, on the basis of environmental concerns, violated the First Amendment right of the utility companies.
2. Prof. Wolff ends this argument stating that a law firm’s product, unlike Ms. Smith’s, is expressive in nature, stating, “Anyone viewing” a firm’s briefs and advocacy “will know that they are [the firm’s] original [] work because they will” see the firm sign its name to papers submitted to the court, conveying the client’s message.” (This point, by the way, contradicts LFC’s claim that the amicus briefs signed by the attorneys who have been hired by First Amendment Scholars to make arguments on their behalf are not the briefs of the attorneys who wrote and filed the briefs. Notably, Prof. Wolff signed his own amicus brief.)
(Continued)
But there is a gaping hole in this argument which Prof. Wolff has failed to appreciate. Section 24-34-601 of the CADA law states, in relevant part:
“(1) As used in this part 6, ‘place of public accommodation’ means any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public; any place to eat,drink, sleep or rest, or any combination thereof; … ‘Place of public accommodation’ shall not include a church, synagogue, mosque, or other place that is principally used for religious purposes.
“(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Please note, the definition of a place of public accommodation includes any and all places of business … offering services … .” The only exception to the definition are churches, synagogues, mosques, and other conventionally recognize places of religious worship.”
(Continued)
A law firm offers a service to the public - to provide legal advice, and, if appropriate, to represent members of the public in legal proceedings, in court and/or before administrative agencies. As Prof. Wolff noted, the services they offer are purely expressive, and therefore protected by the Free Speech Clause of the First Amendment. Surely, Prof. Wolff would not question that a law firm has the right to decide which potential clients the law firm will agree to provide its legal services to. But under the clear, unambiguous terms of the CADA, since a law firm provides a service to the public, it qualifies as a “place of public accommodation” under the statute. There is no exemption for law firms. Consequently, if a same-sex couple went to a law firm in Colorado and requested that the law firm represent the couple in litigation against a website developer who, like Ms. Smith, refuses to provide them with their service of creating wedding announcements for their upcoming wedding, if the law firm refused to provide the same-sex couple with legal representation on the basis that the law firm agrees with Ms. Smith, the law firm would be violating the CADA, because it would be refusing to provide its legal services to two residents of Colorado based on their sex/sexual orientation. Since Prof. Wolff acknowledges that the only service a law firm offers is expressive, the application of the CADA to the law firm would necessarily violate the First Amendment. And it would be no excuse to say that the State of Colorado has not yet enforced the CADA against any law firms. A law firm would be entitled to file a lawsuit in federal court under Ex parte Young, even without being charged with violating the CADA, requesting a ruling that the CADA is unconstitutional, since it does not contain an exception for law firms. Nor does it contain an exception for lobbyist businesses; or for businesses which offer to write speeches for political candidates. None of these businesses could refuse to provide their services to politicians or speakers who either oppose same sex marriages, or who support same sex marriages, depending on the political views of the business.
(Continued)
3. Prof. Wolff next argues that the compelled speech decisions do not support Smith’s position, e.g., West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (pledge of allegiance case), and Wooley v. Maynard, 430 U.S. 705 (1977) (“Live Free of Die” license plates), because in both of these cases the statutes which were being challenged related exclusively to speech, implying that the compelled speech doctrine only applies when the statute in question directly orders that citizens use certain speech. According to Prof Wolff, because the CADA is not directly aimed at speech itself, it cannot be ruled unconstitutional because it may compel speech in some circumstances. This argument is erroneous, because in the most recent decision by the S. Ct. relating to compelled speech, the statute in question was not even directed at speech per se, but was ruled unconstitutional because the statute would have the effect of compelling speech, in violation of the First Amendment. The case in question is Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. ct. 2448 (2018), in which an Illinois public employee, Mark Janus, challenged the constitutionality of the Illinois Public Relations Act which permitted public employees in Illinois to unionize. The statute, like the CADA, was not directed at speech – it was directed at union organizing. Janus objected that under the terms of the statute, he and other public employees who refused to join the union because they disagreed with some union policies, were still required to pay an agency fee to the union to pay for the unions’ collective bargaining and grievance arbitration services. Janus contended that compelling him and others to pay the agency fees constituted compelled speech and violated the First Amendment. In a 5-4 decision, written by J. Alito, the S. Ct. agreed, and invalidated the payment of agency fees in public employment. The Court stated, id. at 2464:
“Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. [West Virginia Bd. of Ed. v.] Barnette, [319 U.S. 624 (1943) (requiring elementary school students to recite the Pledge of Allegiance or salute the American flag is an unconstitutional violation of 1st Amendment)]
“Compelling a person to subsidize [emphasis in the original] the speech of other private speakers raises similar First Amendment concerns. ... As Jefferson famously put it, ‘to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.’ A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950 (emphasis deleted and footnote omitted)[.]
(Continued)
Surely Prof. Wolff is aware of the Janus decision. Yet, I find it curious that nowhere in his amicus brief did he cite the Janus decision, which directly contradicts his claim that the compelled speech doctrine only applies to statutes which focus exclusively on speech. This was not the case with the Illinois statute. Now, one might argue that the case is distinguishable because it applied to forced financial subsidization of speech with which one disagrees. This purported distinction would be specious, since if a statute is unconstitutional because it compels financial subsidization of speech with which one disagrees, it a fortiori would apply to a statute which not only compels subsidization, but which compels actual expression of the view one disagrees with – which is precisely what the CADA does in Ms. Smith’s case.
Nor could the Janus decision be distinguished on the basis that Janus, unlike Smith, is not selling a service in the market place, or that the speech in question is not his own. He is in fact selling his labor to the public employer. And, by being forced to subsidize the speech he does not agree with, the speech he does not agree with issued by the union, becomes the speech of those who are subsidizing it.
(By the way, I believe the result of the Janus decision is itself unconstitutional, because it requires the union to provide collective bargaining and grievance/arbitration representation services to freeloaders, and thereby constitutes a “taking” in violation of the Due Process Clause of the 14th Amendment – it is taking the property of the union – its services – without just compensation.)
(Continued)
4. Prof. Wolff’s next argument states, “CADA also does not force speakers to incorporate unwanted elements into their own speech. When Petitioner sells goods and services to the public, it is not a street- corner speaker engaged in the communication of a personal message, it is a vendor engaged in a commercial transaction.” This statement is contrary to the numerous commercial speech decisions issued by the S. Ct., example of which have been cited above, in which the Court has held that 1st Amendment rights can apply to commercial speech, depending on the facts. Prof. Wolf proceeds to distinguish a case relied on by the Petitioner, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995). In Hurley, an LGBTQ organization sued the sponsors of the Boston St. Patrick’s Day Parade because the sponsors of the parade would not allow members of the LGBTQ organization to participate in the parade. They sued in Massachusetts state court, claiming that not allowing them to participate in the parade constituted discrimination in violation of the Massachusetts anti-discrimination statute, comparable to CADA. The Massachusetts agreed with the plaintiffs, and the decision was affirmed by the Massachusetts Supreme Court. The S. Ct. granted certiorari and reversed. In a unanimous decision written by J. Souter, the Court held that the purposed of the St. Patrick’s Day Parade was to convey the message of the parade organizer, which was to communicate “traditional religious and social values.” Allowing the LGBTQ community to participate in the parade against the wishes of the parade sponsors would dilute that message, and constitute compelled speech.
Smith argued that she stands in the position of the parade sponsors and should therefore not be compelled to include speech in her wedding announcements which celebrates heterosexual marriages, and which would be contrary to her religious convictions. Prof. Wolff dismisses this contention, stating, “Hurley used the terms ‘inherently expressive’ to describe a setting in which a speaker is engaged in communicating its own personal message to an audience. A parade organizer qualifies. A business selling goods and services in the marketplace to paying customers does not. It is the customer who stands in the shoes of the parade organizer here, not the vendor.” This distinction is spurious. In the case of the wedding announcement creator, the final product is a hybrid of the customer’s speech and the designer’s speech. Smith’s heterosexual wedding announcements are each customized for each heterosexual customer. The fact that she starts out with a template, as aalll and David Zimmerman have argued, does not mean that the final product is no more than the template. She embellishes each template for the specific customer, not just with the names of the nuptials, where and when the ceremony is taking place, but with a unique design which is incorporated into each different couple’s wedding announcement. Those embellishments incorporated into the announcement constitute her speech, not the customers’. She has just as much right to protect that speech against dilution by the customer as the sponsors of the St. Patrick’s Day Parade have the right not to allow members of the LGBTQ community dilute its message of traditional religious and social values.
(Continued)
This point may be best understood by considering the situation of law firms in Colorado, an aspect which Prof. Wolff completely ignores. On the one hand, a lawyer is selling his/her legal services to convey to the court the client’s message. So, in one sense, the message the lawyer conveys is that of the customer, the legal client. On the other hand, most lawyers in private practice would not take orders from the client about what should be included in the brief, how the statement of facts must be presented, what legal arguments should be made, and in what order. I tell my clients at the beginning of my representation that I have final say on what is included in any brief I file with the court. If they don’t like it, they can find themselves another attorney. The speech in the brief is my own – the vendor’s - even though it is simultaneously my client’s speech – the custoemr’s. It is hybrid speech, the same as in the case of Ms. Smith’s wedding announcements. (This is not entirely the case of lawyers who represent insurance companies, labor unions, government entities and other organizations, which often make demands on the attorneys who represent them. If the lawyer refuses to comply, that will be the last time they represent that entity.)
As noted above, there is no exception in the CANA for law firms. In the example I gave, if a same-sex couple asks an attorney to represent them in a lawsuit against a wedding announcement preparer, as well as a wedding photographer, wedding cake baker, wedding dress designer, et., based on the lawyer’s personal disagreement about same-sex marriage, under the CADA the same-sex couple can file a complaint against the lawyer and force him/her to take the case. While this would be a very bad tactical decision, nothing in the CADA would preclude it. This would totally eviscerate the standard view that private, non-governmental attorneys are free to take or reject cases as they wish. Moreover, since an attorney has a professional and ethical obligation to represent a client’s interests to the best of his/her ability, the attorney would be compelled to use speech in the brief which is antithetical to the attorneys’ own personal beliefs, a clear case of compelled speech in violation of the First Amendment.
(Continued)
Prof. Wolff does not even consider this implication of the CADA in his amicus brief. He even goes so far as to state, “Some customers who hire 303 Creative may select the company because they appreciate and share its religious or ideological views, but they are not apaying to facilitate the company’s own message any more than a client would pay a law firm to promote the firm’s own ideological agenda.” This is categorically false. A good lawyer in private practice puts his/her ideological imprint on the legal work s/he does, whether it be the briefs which are filed in court, the way motion arguments are made, or the way a trial is presented to a judge or jury. That speech is the lawyer’s speech, not the client’s. And to disregard this reality of legal practice is an exercise in naivete. The same is true for Smiths’ clients, who may be selecting her for the creativity she imbues her wedding announcements with, however unattractive aalll may think Smith’s wedding announcements are.
5. Prof. Wolff proceeds to cite a series of cases in which conduct is separate and apart form speech, and which have no relevance to the issues raised in Smith’s appeal. For example, he cites the decision Elaine Photography, LLC v. Willock, 309 P.3d 53 (N.M. 2013), in which a professional photographer refused to provide photographic services at a same-sex wedding, indicating in an email that she only photographs traditional weddings. The couple filed a complaint with thr New Mexico Human Rights Commission for discriminating against them in violation of the New Mexico Human Rights Act. The photographer defended by arguing that her artistic wedding photography constituted speech, and that compelling her to take photographs at a same-sex wedding violated her 1st Amendment rights. The New Mexico correctly rejected this argument. There is no speech involved in a photographer’s photographs, regardless how creative and unique the photographer’s photographs may be. Wedding photographs aby Ansel Adams, Richard Avedon or Annie Liebowitz do not involve speech, no matter how breath-taking, memorable, or inspirational they may be. This is another straw man case offered by Prof. Wolff.
(Continued)
Numerous times throughout the brief Prof. Wolff cites Rumsfeld v. Forum for Acad. And Institutional Rights, Inc. [FAIR], 547 U.S. 47 (2006), as an example of where the S. Ct. rejected a claim of compelled speech. FAIR involved a federal statute, known as the Solomon Amendment, which required colleges and universities to allow representatives of the military to appear on college campuses to recruit students for military service. FAIR was an association of law schools and law faculty who were opposed to the military because of its then opposition to homosexuals in the military. But if the military recruiters were not allowed to recruit at a law school, that laws school would lose federal funding. They argued that requiring them to allow military recruiters on their law school campuses despite their opposition violated the 1st Amendment’s proscription of compelled speech and freedom of association, because it made it appear that the colleges/universities were endorsing military service despite its anti-homosexual policy, which they opposed. The Supreme Court rejected this argument, pointing out that the Solomon Amendment involved conduct, not speech; that allowing military spokespeople to appear on the campus did not constitute an endorsement of the military and its anti-homosexual policy by the universities; that the colleges/universities were not required to issue statements or notices, other than announcing the schedule of where and when the military representatives would appear; and the literature which the military used was not prepared or printed by the colleges/universities and therefore did not constitute speech of the law schools. This was distinguishable from Wooley, supra, for example where the car owner was required to place the “Live Free Or Die” license plate on his/her car. It is also distinguishable from Smith’s wedding websites, in which the same-sex message would be an integral, rather than incidental, part of the unique wedding announcements which Smith would be required to create under the CADA.
(Continued)
Prof. Wolff also cites Prune Yard Shopping Ctr. V. Robins, 447 U.S. 74 (1980), in which a shopping center owner in California barred demonstrators seeking signatures opposing a UN resolution on the shopping center property. The demonstrators sue in California state court, seeking an injunction against the shopping center owner on the basis that the owner’s prohibition violated both the California and the U.S. Constitutions’ protection of speech and the right to petition. The California trial court agreed with the demonstrators; the California Supreme Court affirmed. On appeal to the U.S. S. Ct., the shopping center argued, among other things, that requiring it allow demonstrators to use its property to disseminate their speech was compelling shopping center to adopt speech with which it did not necessarily agree, as in the case of the license plate in Wooley. The S. Ct. rejected this defense, pointing out that in Wooley, the message on the license plate was one required and imposed by the State of New Hampshire, whereas the speech of the demonstrators was not that of the government. In Smith’s case, the speech supporting same-sex marriage is being required by the State of Colorado under the CADA. In a footnote, Prof. Wolff points out that in Pruneyard the Supreme Court also pointed out that the shopping center could disassociate itself from the demonstrators’ speech by posting a sign disclaiming that it supported the demonstrators’ speech, and that Smith could do the same on any website she designs for a same-sex couple, disclaiming support for same-sex marriage. However, this solution does not avoid the main difference between the compelled speech in Wooley and the demonstrators’ speech in Pruneyard – that in the former case the speech is being compelled by the government, rather than by private citizens. The same objection applies to the requirement under the CADA that it is the State of Colorado which is ordering Smith to express a viewpoint which is antithetical to her religious views. She should not have to resort to a disclaimer in order to protect her right against government compelled speech, any more than that in Janus the public employees could still be required to pay union dues which supported speech they did not agree with, as long as they could issue a disclaimer that they did not support the union speech.
6. Prof. Wolff next rejects Smith’s contention that forcing her to design websites which include designing wedding announcements for same-sex couples would “separate Picasso from his brush or Faulkner from his pen[.]” Prof. Wolff proceeds to give examples which do not accurately reflect Smith’s argument. He states that a portrait artist who offers his talents to the public, offering to paint the portraits of customers who enter the store, cannot refuse to paint the portrait of an Asian woman just because he does not like Asians; or Christians; or Jews; …. By contrast, if the portrait artist selects his own subjects, paints the subjects’ portraits, and then opens a store to sell the portraits, if the artist does not select Asian subjects, or Christian or Jewish subjects, the artist is not violating the CADA.
(Continued)
This example totally distorts Smith’s position. Painting the portrait of an Asian woman does not involve any speech. Refusing to paint the portrait of an Asian woman would be per se discriminatory towards Asian women, or Christians, or Jews, etc., and thereby constitute a clear violation of the CADA. But none of these involve speech. Suppose Picasso, were he alive, decided to create abstract wedding announcements in Colorado, and suppose further that Picasso opposed same-sex marriage based on his renewed belief in Catholicism, Picasso would have the same right to refuse to be compelled to design wedding announcements for same-sex couples, for doing so would necessarily incorporate some speech – even if it is only the names of the wedding couple – which would be antithetical to Picasso’s religious beliefs. And it does not matter, as aalll has claimed, that Ms. Smith is no Picasso, and, from aalll’s point of view, her designs are unattractive. Even if the painter were Jackson Pollock or William De Kooning, whose paintings aalll might claim are not better than what a 3-year old child could paint, if Pollock and/or De Kooning suddenly underwent a religious conversion and decided to start painting Pollock style or De Kooning style wedding announcements, they would have the right to refuse to design wedding announcements for same-sex marriages if such marriages were contrary to their religious beliefs, regardless how ugly aalll might regard their designs to be.
7. Prof. Wolff then proceeds to argue the slippery slope argument – that if Smith’s argument were to prevail, “any business that sells goods or services involving skill with images or words could argue for a similar exemption.” If Smith’s argument were to be applied to the wedding dress designer, the photographer, the caterer, etc., I would agree with Prof. Wolff. However, that is not Smith’s position. Prof. Wolff quotes Smith’s position on p. 19 of the amicus brief as, “303 Creative can violate anti-discrimination laws because it sells goods and services that ‘contain images, words, symbols and other modes of expression.’” In making this argument, Prof. Wolff is ignoring a basic principle in the law that the use of the word “and” requires that all of the elements identified must be present in order for the statement to apply. Here, Smith uses the word “and” and includes “words and symbols” as necessary elements in the artistic creation in order for the product not to violate the anti-discrimination laws, because by including words which support same-sex marriage, the law is compelling the use of speech in violation of the First Amendment. Had Smith claimed that, “303 Creative can violate anti-discrimination laws because it sells goods and services that ‘contain images, or words, or symbols, or other modes of expression,” then Prof. Wolff’s argument would be correct. But that is not what she argued, and to replace the conjunctive “and” with the disjunctive “or” totally mischaracterizes her position. As long as the use of words or expressive symbols having he force of words, are a necessary element in the artistic creation, compelling someone to incorporate words and/or symbols which convey support of same-sex marriage, the law which compels this speech is an unconstitutional violation of the First Amendment.
(Continued)
8. Finally, Prof. Wolff makes the argument that Smith’s lawsuit is premature, because she has not yet created a website which indicates that it refuses to design wedding announcements for same-sex couples, stating, p. 21, “Indeed, what if the owner of 303 Creative changes her mind about expanding into the wedding business after this case is over, deciding that she has made her point? This Court will have issued an advisory opinion.” This argument is entirely specious and ignores the doctrine which has been the law in this country since Ex parte Young was decided in 1908. Since that decision was issued, it has been standard practice for state citizens to use the mechanism set forth in that decision to challenge the constitutionality of a state statute without first violating the terms of the state statute. This is precisely what Mark Janus did to challenge the constitutionality of the Massachusetts public employment relations act’s requirement that he pay agency fess to the union. He could have first violated the statute by refusing to pay the agency fees and wait for the union to sue him. But, instead, he continued to pay the agency fees and intervened in a lawsuit which had already been filed challenging the statute. Once he prevailed, he could have decided, well, I’ve made my point and I am going to continue to pay the agency fees even though I do not have to. Nothing in the Ex parte Young, the Constitution or federal law precludes a citizen who wishes to contest the constitutionality of a state statute to actually take the action the citizen was hypothesizing after the citizen prevails. Every lawsuit filed pursuant to Ex parte Young is a potential advisory opinion. Smith has every right, as did Janus, to challenge the constitutionality of the CADA even if, in the event she prevails, she decides not to design websites which create wedding announcements only for heterosexual couples. As long as the citizen has standing to sue when the lawsuit is commenced – as Janus did, and as Smith does – nothing binds them to engage in the conduct which they are proposing to engage in if they prevail. Such lawsuits serve an important purpose regardless – they prevent states from enacting statutes which violate the Constitution, and that is an important objective in and of itself.
One final point, raised by aalll, who argues that Smith is no more than a stalking horse for revanchist, anti-democratic elements which are seeking to return this country to a bygone less fair past. If Smith succeeds, the ruling will have a very narrow application – it will only apply to businesses offering wedding related services which have speech as an inherent element. Other than wedding announcements and wedding cakes with gay marriage messages on them, I cannot think of any other wedding related service which has language as an inherent element. Regarding Smith’s campaign being financed by opponents to gay marriage, her right of association protected under the First Amendment entitles her to join forces with citizens who share her views. Nothing she does threatens the right of members of the LGBTQ community to get married. Mark Janus did not finance his own litigation. He was supported by elements in Massachusetts and nationally which supported right-to-work legislation. It was also his right of freedom of association to choose whom he wished to associate with. And aalll’s attack on such associative rights is entirely undemocratic.
(Continued)
In sum, I find Prof. Wolff’s amicus brief unpersuasive. He relies on straw men to enhance his position; he fails to acknowledge the relevance of the Janus decision; he has failed to address the gaping hole which the CADA creates by its unambiguous application to law firms; he elides the difference between artistic services which inherently incorporate speech as part the service and those which do not; and he minimizes the appropriate application of Ex parte Young.
So, I have spoken, so to speak, my piece. I have no illusions that anything I have written above will change any minds. Some may discount what I have written because I am no more than a practicing attorney who lacks the legal expertise of a prominent law professor. I may no longer be welcome on this blog for having criticized the legal work of Prof. Wolff’s son. But so be it. My fidelity is to the law as I see it. Laurie Smith’s case involves significant First Amendment rights, rights which should not be compromised or sacrificed in order to advance a competing political agenda. Fiat justitia ruat coelum.
Correction:
Mark Janus was supported by elements in Illinois, and nationally.
Marc,
I haven't read most of this yet (and whether I will is an open question), but your parenthetical swipe at me in the first installment is a cheap shot.
All I was doing is distinguishing between the amicus -- the friend of the court -- itself, and the lawyers who write the brief for the amicus. If the Michigan Clam-Chowder and Marching Society (MCMS) files an amicus brief in the case of X v. Y, and the counsel of record signing the brief is Johnny Carson of the Ann Arbor law firm Carson & Snopes, the amicus is MCMS. The brief is the work product of Carson, but Carson himself is not the amicus.
Now in the case of Tobias Wolff's amicus brief, he is *both* the amicus *and* one of the lawyers for the amicus, since he signed the brief. In other words, he is one of the lawyers for himself.
That fact does not challenge in any way the basic distinction I was making, and your parenthetical swipe at me is therefore meritless.
P.s. And you are way too smart not to realize that, which makes your swipe an even cheaper shot.
LFC,
Could I ask you as a favor to all of us to please read Marc's critique of Professor Tobias Wolff's legal analysis? I believe that you are the only regular commenter with the legal training to weigh the legal merits of both positions.
As for Marc's "cheap shot", he cannot avoid insulting or disqualifying those who disagree with him.
Above at 1:20 Marc searched for the insults he has received in this thread, to which he was supposedly responding and did not find a single one from you or from any other regular commenter on this blog.
Marc likes to see himself as a contemporary Socrates taking on the herd liberals in this space who want to cancel him for his heretical ideas, but in reality everyone here is very courteous and respectful with him and receives gratuitous insults back.
s.w.
Well, David Palmeter is a lawyer (law degree from Univ of Chicago, worked for the Justice Dept), so he could weigh the competing analyses just as well as I could.
But more to the point, to do this properly I wd have to read both Tobias Wolff's brief and Marc's response, and I'm not sure I want to devote the time to do that, to be honest.
Have to sign off for a while now.
Abruptly changing the topic for a moment: s. wallerstein, do you mind if I send you a personal e-mail?
I'm talking (in writing) with someone - a very recent online acquaintance (I don't even know the person's name, just their username) - who's seriously despairing about the quality and indeed livability of their life, more than I initially made out. I'm just trying to offer a thoughtful and sympathetic ear, having been in an at-least-somewhat similar place myself, and I'd like some feedback on what I've said so far. (Out of respect for their privacy, I won't quote their writing, and will only vaguely describe their situation.) I'm of course not a trained professional, just someone with a desire to talk honestly, compassionately, and (if possible) constructively about what to make of life when it's a serious and (to the person) seemingly bleak struggle. The person has recently tried an outpatient program, so, they've been in contact with some professional(s), too, though I don't think they're established anywhere at the moment.
Naturally, I'm afraid of saying the "wrong" thing - I depart somewhat from the standard "I promise it gets better" line; I explicitly say I can't make any such promise. (How could anyone?) I just express my willingness to listen, and acknowledge that life really can feel like shit - that there's not a guaranteed solution to the problem of life, that the most anyone really has (short of professional intervention) is a range of tentative suggestions that are of varying appropriateness and helpfulness depending on individual temperament and circumstance. But I also explicitly encourage the person to take their time, not act in haste, and trust that there are indeed better days ahead - even if that trust feels blind or false.
If you're okay with looking it over (I still have your Gmail address, unless it's changed), I could share my initial message with you in private, or you could offer some more general advice here - whichever. But no worries if this is too much to ask.
Michael,
Sure, but if that person is in serious risk of harming themself, they need professional attention.
It's a huge responsibility for you to take that on for yourself.
I once tried to help a woman friend who was going through some serious problems. She ended up throwing herself out of a window and spent at least a month in the hospital.
When she got out, she called me with obvious problems. I took a taxi to her home and
more or less forced her to accompany me to the hospital emergency room where given her behavior, they immediately hospitalized her.
So in my opinion a precondition for any dialogue with a highly disturbed person is that said person is seeing a competent professional, be they a psychologist or a psychiatrist.
Much appreciated. I'll send something your way in a few minutes.
Any general advice from other commenters here is of course welcome as well.
P.s.
aalll cd also do it, as he seems to be quite knowledgeable about U.S. law (whether he went to law school or not).
Or you cd do it for yourself, though it's a lot of reading.
What these briefs do, generically speaking, is try to persuade the audience (in this case the Justices) of their position, and since no two cases are *exactly* alike, both sides can argue that the case at hand is closer to one line of precedent than another. For example, part of what Marc did in the first installment was argue that Ms. Smith's case is not like Hishon v King & Spaulding, since a law firm's decision not to promote someone is conduct not speech (notwithstanding the law firm's argument to the contrary there). Lawyers call this "distinguishing" a case, and it's something these briefs prob spend a lot of time doing.
Fun, right?
Sorry, that was directed to s.w. I did not see the intervening exchange on that other topic when I posted.
LFC,
Regarding what you call a “cheap shot,” you will recall that early back in this thread, you wondered if there were amici briefs filed by other academics besides Prof. Tobias Wolff. In order to answer your question, I looked up the S. Ct. docket, printed it, and searched through it for all of the amici briefs – of which there were over 90 – to identify which had been filed by other academics or groups claiming legal scholarship. I then posted a list of them, and, with respect to First Amendment Scholars, looked up the names of each of the filers to determine if any were law professors. I determined that they were all lawyers at law firms, and so stated. You came back with a comment that I was wrong, because the filers were not the real amici. I thought that was pretty petty of you, and it was not the first time you done that regarding a comment that I have posted. So, from one cheap shot to another.
I just realized that I referred to Prof. Tobias Wolff at the beginning of my analysis as "Talbot," I apologize to Prof. Tobias Wolff, and to his father, for the misnomer.
s. wallerstein,
Just as you have asserted that I have a distorted view of myself, you have a distorted view of yourself. For example, your claim that everyone, including you, have been respectful towards me regarding my support of Ms. Smith’s 1st Amendment rights. Earlier in this thread, you stated the following:
“[W]hatever the Supreme Court's decision, it's not going to dissuade me that the decent and civilized thing to do is to make sure that gay people have the same right to have their marriages celebrated by websites as non-gay people do.”
That assertion is also an assertion about Ms. Smith, and people like myself who support her right to refuse to design wedding announcements for same-sex couples - that she and they are not decent, and not civilized people, and I resent that being said of me.
Marc,
Sorry. I expressed myself in a clumsy way.
I meant that Ms. Smith's attitude is neither decent nor civilized.
I assume that you yourself support gay marriage and that if you were a website designer, you
would have no problem designing websites about gay marriages. Thus, those comments do not refer to you personally.
The slippery slope redux:
In arguing that slippery slope worries about Ms Smith’s argument befor the SC, Marc makes much of the fact that there is no religion that currently holds that Black people are inferior, a doctrine that might support an individual believer’s argument that she should not be required to design a website for a Black person or organization.
However, as Marc has himself acknowledged, the Church of the Latter Day Saints (the Mormons) as recently as 1978 has maintained as a doctrinal commitment the view that Blacks are inferior and thus do not qualify for the Mormon priesthood. A Mormon web designer before1978 might have based her refusal to serve a Black client on her religiously based disapproval of Black people. She could have cited LDS doctrine to back up her claim to freedom from being forced to express views that go against her sincere religious convictions. After 1978 such a religiously based First Amendment claim would not be sustainable, given the revision in Mormon doctrine.
Questions:
Does the legal status of a First Amendment claim not to be forced to engage in expressive behavior that goes against one’s sincere religious beliefs really turn on the sheer contingency of whether the only (?) major religion that maintains racist doctrines has or has not given up that doctrine?
Do defenders of Ms Smith and her ilk really want to claim that a person’s right not to be forced to engage in expressive activity that goes against her sincere religious beliefs turns on whether there happens to be a recognized religion that holds the beliefs she embraces?
If so, then on this reasoning a Mormon Ms Smith before 1978 would have a constitutional right to refuse to design a website for Black people, whereas a Mormon Ms Smith after 1978 would not have such a constitutional right.
Are constitutional rights in Americas really to be subject to such contingencies?
If not, then the slippery slope argument has real force against those, such as Ms Smith and her defenders, who maintain that she has a religiously based right to discriminate against gays, but that she has no religiously based right to discriminate against Blacks… solely on the grounds that in 2022 there happens to be no legally recognized religion that doctrinally holds Blacks to be a inferior race.
David,
The inter-racial marriage slippery slope ended in 1978, once the Church of Latter Day Saints changed its doctrine regarding the acceptance of Blacks into the Mormon Church. Any so-called religion that may evolve now or in the future which would exclude Blacks would not be recognized by the S. Ct. as a legitimate religion deserving protection under the Free Exercise Clause of the Constitution, particularly given that Loving v. Virginia prohibiting states from refusing to recognize inter-racial marriages was decided in 1967. There is no slippery slope which connects Smith’s refusal to design wedding announcement websites for same-sex couples and inter-racial marriage.
The slippery slope which Prof. Tobias Wolff is worried about is a slippery slope which begins protecting Smith’s right to refuse to design wedding announcements for same-sex couples expanding to apply to wedding photographers, wedding dress maker, wedding caterers, wedding electricians, etc. As I indicate in my analysis of Professor Wolff’s amicus brief, this concern is spurious, because Smith’s argument can only be applied to services in which speech is an integral part of the service. The only other service that I can think of to which this would apply in addition to wedding announcements would be a wedding cake baker who is told by a same-sex couple that they want a message in the icing referring to a celebration of same sex marriage. A wedding cake baker opposed to same-sex marriage could not refuse to bake a wedding cake which had no language on it whatsoever – not even the names of the nuptials. Such a refusal would violate the CADA and would not be defensible under the First Amendment.
Here’s another example of a wedding service which an individual opposed to same-sex marriage could not refuse to provide – a wedding DJ. Suppose the same-sex couple tell the DJ they want him to paly “YMCA” by Men At Work. Could the DJ refuse to play the song? No, s/he could not, because playing recorded music is conduct, not speech. However, suppose the couple hire a singer to perform live at the wedding reception, and the singer they hire is opposed to same-sex marriage – a decision which would be highly unlikely, but in law you can hypothesize anything. Could the wedding singer refuse to sing YMCA? I believe he could, because compelling him/her to utter the words of the song constitutes compelled speech. But he could not refuse to sing Hava Nagila at a same-sex Jewish wedding.
I think you have missed my point, Marc.
It was about the utter contingency of the fact that a "recognized" religion held a racist doctrine that would have supported a constitutional right to refuse an expressive service to Blacks before 1978, while its change of doctrine after 1978 would then undermine that constitutional right.
Does the right of an American to refuse to engage in expressive behaviour really turn on such a contingency?
Under US law would a Mormon Ms Smith have the right to refuse to design a website for a Black person before 1978, only to be legally required to design the website after 1978?
Addendum of clarification:
Marc, you say that: "The inter-racial marriage slippery slope ended in 1978, once the Church of Latter Day Saints changed its doctrine regarding the acceptance of Blacks into the Mormon Church."
This is to concede that before 1978 there was a legitimate racial slippery slope argument to be pressed against those who would refuse to design websites for same sex couples. You claim that this argument lost its force in 1978 when the only remaining recognized religion changed its doctrine so as to eliminate any basis for refusing expressive services to Black people.
My point is that it is a mere contingency that before 1978 the slippery slope argument would have applied to her case, and thus have nullified her right to refuse, whereas after 1978 it does not apply to her case because the Church of the LDS happened to have changed their racist doctrine before her case was heard.
Again I ask: Does the right of an American to refuse to engage in expressive behaviour really turn on such a contingency?
Yes. So what? We cannot go back in time, and thee is not other constitutional right which is currently subject to this contingency. If a right is contingent on the doctrines of a religion, then of course the right will be subject to modification as the doctrines get modified. But there is only one doctrine which is relevant to this former slippery slope - the doctrine related to interracial marriage - unless we consider the hypothetical I posed in this or a prior thread - human-cyborg marriages. But I know of no religion yet which prohibits human-cyborg marriages.
"Some have accused Ms. Smith, erroneously, of engaging in “gay bashing” and have accused me for supporting her position of being a homophobic bigot."
Which distorts what some of us have opined. You, I believe, don't personally know her so you have no idea about what's going on in her head. Cognitive dissonance is a thing, after all, and folks have parts. For whatever reason, you see what compelled speech there may be as material while others see it as incidental.
Reason and my life experience tell me that no one with a serious business plan forgoes six years of potential income (and with no capital expenditures) over the possibility of at most a $500 fine and when she will/would have no legal costs. You see a case and arguments, I see an agenda and sides.
This is on page 93 of the transcript:
"JUSTICE GORSUCH: Mr. Phillips did go
through a re-education training program pursuant
to Colorado law, did he not, Mr. Olson?"
That's as clear a tell as we need. There's always been an animus towards public accommodation laws on the Right and this case, as with the NAACP LDEF back in the day, the usual suspects are going after the low hanging fruit. Gorsuch will do his mother proud (also seems his PhD dissertation was supervised by John Finnis).
"...I do not suffer from any mental disorder."
Unlike the other 8,000,000,000 + of our species?
So constitutional rights can pop out of existence and then into existence depending on whether contemporaneously recognized religions embrace and then cease to embrace certain doctrines?
Very strange.
David,
You are apparently concerned that a “right” could be subject to historical contingencies, as if this taints the concept of “rights.” If something is a “right” under the Constitution, it should be an eternal right, otherwise it is not really a “right”? Before the S. Ct. decided Obergefell, there was no “right” to same-sex marriage. It did not exist. The Obergefell decision brought it into existence. Before the S.Ct. voted, the right did not exist; the second after they voted, it became a “right.” There is nothing unusual about this. It is part of the nature of law. Before 1963, when Gideon v. Wainwright was decided, an indigent defendant in a criminal case did not have the right to appointed counsel. After March 18, 1963, the day Gideon was decided, indigent defendants charged with a criminal felony had the right to appointed counsel. What does this mean, philosophically? There are no eternal rights.
David,
I am sitting here laughing at the idea that, as sophisticated as you are, and with a Ph.D. in philosophy, that this is new to you? I wonder how many other people who read and/or comment on this blog find it disturbing that “rights” are contingent, and not eternal?
aalll,
All I can say is, thank God you are not a judge, and, should I ever have the opportunity to try a case in California, I will make sure to use my peremptory challenge to keep you off the jury.
I hesitate telling you all this, but last week my wife, daughter and I went to see a local production of the Nutcracker Suite. After the ballet, we went out to dinner, during which I raised the question regarding Laurie Smith’s case. I explained to my daughter my position. She vehemently disagreed with me and told me that my arguments are specious. She did not call me a homophobic bigot, which probably would have made me cry. But I did give her pause when I asked her if a minister, priest, or rabbi could be compelled to officiate at a same-sex marriage. She hesitated and said she has to give that some thought. I then said that after she figures it out, and concludes that they should not be forced to officiate at a same-sex marriage and state, “I now pronounce you husband and wife,” why should Laurie Smith have less rights?’
She is preparing to take the LSAT’s and is intending to attend law school. The prospects of a law firm named Susselman & Susselman do not look very bright at the moment. (Since she has not yet attended law school, I attribute her disagreement with me to the fact that she has not yet taken a course in Constitutional Law.)
Gee thanks for the gratuitous jab, Marc.... Keep up your usual practice of gratuitous jabs.
You still miss the point.
OF COURSE, the existence constitutional rights are contingent on what the Supreme Court of the US says.... as in Gideon v Wainright, Brown v. Bd of Ed and so forth.
My point was not about what the SC says but about the availability of powerful arguments by analogy that sustain or fail to sustain an argument for the existence of a right.
Here's the picture:
Before 1978:
Someone like Ms Smith claims the right to refuse to design a website for gay couples on the grounds that it forces her to express approval of gay marriage, which her religion disapproves of.
Those who oppose that view argue--- forcefully--- that by parity of reasoning someone could refuse to design a website for an interracial couple on the ground that it forces her to express approval of interracial marriage, which her religion, Mormonism, disapproves of.
This is a powerful argument --you concede-- which courts would be likely to take seriously, and thus find against the anti-gay web designer.
After 1978:
Ms Smith claims the right to refuse to design a website for gay couples on the grounds that it forces her to express approval of gay marriage, which her religion disapproves of.
Those who oppose Ms Smith argue--- forcefully, I think--- that by parity of reasoning someone whose religion disapproves of interracial marriage could refuse to design a website for an interracial couple on the ground that it would force her to express approval of interracial marriage, which her religion disapproves of.
Supporters of Ms Smith argue that there are no such religions... No "legally recognized" religion actually disapproves of interracial marriage.
You argue that this in itself is enough to undermine the force of an argument by analogy that did have force before 1978.
Those who oppose Ms Smith argue that the actual existence of such a racist religion is not to the point. The question is whether a person could refuse to design a website solely on the grounds that her religion disapproves of the practice in question.
The point is that the strength of such an argument by analogy against Ms Smith should not depend on contingencies such as the history of the Mormon view of interracial marriage.
Sorry, David, but I do get your point, and I was not intending to make a gratuitous jab. And yes, arguments by analogy do depend on such contingencies. There are not currently any religions recognized by the S. Ct. which condemn interracial marriage. Ms. Smith’s case is currently before the Court. That argument by analogy fails at the current time. What might have happened had Ms. Smith’s case occurred in 1977 is irrelevant. Relevance overrides parity of reasoning. End of story. The same argument could have been made in Gideon, that at the current time there is not a recognized right for an indigent criminal defendant to have assigned counsel. Supreme Court: Well, we are now going to change that. You may find this intellectually unsatisfying, but that’s the way it is.
If Alito writes the majority opinion in favor of Smith, there's another way he may try to head off the slippery slope argument, namely by referring to language in Obergefell noting that some people have sincere religious objections to same-sex marriage. (There's probably no comparable language in Loving v Virginia, the interracial marriage case, but I'm not sure.) In all likelihood I won't agree with Alito's opinion, but that's probably what he'll do on this point. It won't divest the slippery slope argument of all its force, for sure, but it seems to be the best move Alito has here, or so I'd suggest.
At the level of formal legal claims -- as opposed perhaps to the plane of political reality, which aalll has emphasized -- this case involves a clash of rights, which is why it's not a simple open-and-shut case.
B. Leiter has referred to SCOTUS as a superlegislature, suggesting he thinks its decision-making is basically or entirely political and policy-driven. That may be a bit of an exaggeration, but there is a lot of politics and policy bound up w constitutional adjudication.
Justice Breyer among others used to talk about the "play in the joints" between the Establishment Clause and the Free Exercise Clause (the phrase shows up in opinions) -- two clauses and two rights that are often in conflict. Here the conflict is basically between free speech/free exercise on one hand and anti-discrimination on the other. Maybe the Court needs to acknowledge a "play in the joints" between the rights that are clashing here.
Just a few semi-random thoughts...
One last thought: constitutional law, in my opinion, is one of the more interesting of the standard law school subjects, because the scope for disagreement is often larger than in other areas and it is more closely tied to philosophical considerations (whether acknowledged or not). And free speech is an area that has perhaps been even more riven w disagreement and change over time than many other areas of con law.
The standard story (which has been challenged but I think is still the standard view) is that modern First Amendment law dates only from the period during and just after WW 1. The date of Holmes's famous dissent in Abrams is 1919. On this view, the modern law of the First Amendment is only about 100 years old, which is not that old.
Marc, I believe that there is a qualitative difference between a person whose speech and actions are material and legally required to effect a marriage and a peripheral actor performing ministerial or other incidental speech and actions.
I'll refrain from a "what goes around" observation as the Dearborn Heights thing is wrong and shouldn't have happened but we should keep in mind the serious terrorism pro-choice folks have endured since Roe. Anyway, terming these organizations as "clinics" tortures the concept. They are mainly propaganda outfits that guilt and lie women into not getting abortions while engaging in minimal, performative support. California had a law requiring these outfits to also post a notice informing clients of available state options (N.B. states with laws requiring doctors to follow an anti-abortion script remain untouched) until the usual suspects (5 - 4) on the SC found against the law in 2018. Still we persevere:
https://oag.ca.gov/news/press-releases/attorney-general-bonta-issues-consumer-alert-warning-californians-crisis
Moving on, a few thoughts on Janus. Marc is stuck in a "majesty of the law preventing both the rich an poor from sleeping under bridges" mode. In 1935 the New Deal Congress passed the Wagner Act which finally gave workers guarantees on forming and joining unions. Capital and the usual reactionary suspects have ever since sought to undo those protections. For some reason in 1946 folks who should have known better returned control of both houses of Congress to Republicans who (along with populist/racist Democrats passed Taft-Hartley over Truman's veto. TH banned, among other things, closed shops and allowed states to pass so called Right to Work laws. So called "free speech" is a red herring designed to confuse the issue. Janus was yet another move backwards.
In most of life's matters that one confronts cui bono is often a useful mode of analysis. Who benefits from a radical theory of "freedom" that allows the destruction of any concept of worker solidarity? Workers? Sure! Democracy and most workers sure has benefited from the so called "freedom" kayfabe our plutocratic betters have funded over the last near century. (I have to note that after the decision Janus got a job with the organization that funded the suit).
Another reason to take all this "freedom" with a grain of salt is the near total contingency of how these decisions came to be. (To a first approximation it's all Ralph's fault and why couldn't Thurgood's health have held a few months longer? We have Alito and Roberts because you know. Scalia did the right thing but McConnell screwed that up. Putin and the NYT gave us Trump and here we are. There's no great scholarship or principles here.
I didn't read most of Marc's analysis of T. Wolff so I don't know what Marc said about Janus. This may be one instance in which I'll just settle for not knowing.
But as far as contingency is concerned, it's not avoidable. There have always been right-wing, reactionary forces in the U.S., waxing and waning in strength in different periods. The notion that if only Jefferson Davis had been hanged after the Civil War, and if only the Democrats had retained control of Congress in 1946 everything would have been fine seems simplistic. Which is not to say Taft-Hartley was good, but even without it deindustrialization, the "offshoring" of production, and the various developments under the heading of 'neoliberal globalization' wd still have occurred.
And those developments would still have contributed to the emergence of so-called Reagan Democrats and later wd still have contributed to Trump's voting base.
This is what the people who blog at Lawyers Guns & Money -- except, I think, for Erik Loomis -- don't understand. They turn everything into a morality play that distorts history and turns into a flat, one-dimensional thing in which almost everything is the fault of one third-party candidate for president in the year 2000.
Typo correction: turns it into
LFC, things will never be perfect but the reason why we have books like "The Economic Consequences of the Peace" is that maybe, with a little reflection, we can do better. Had we taken treason seriously (see state suicide and Sen. Sumner) post Civil War and hanged Jeff Davis (and Alexander Stevens and a few others as well as impeaching Johnson) it would have meant that we might have also have had the necessities to do other things and avoided the terror of Jim Crow and the Lost Cause BS that plagues us still. In 1930 things like Social Security, unemployment insurance, effective labor legislation, REA, etc. just existed in the heads of folks like Francis Perkins, By 1938 they were things.
For example, the current situation in Ukraine is an inflection point. We also have other choices. Heel turns don't have to happen.
David,
I wish to revisit your parity of reasoning argument regarding Ms. Smith’s right to refuse to design a wedding announcement for a same-sex couple. The answer I gave you yesterday was a bit rushed since we were about to head out to a restaurant for dinner.
I have re-read your parity of reasoning argument and have concluded that it is invalid, for the following reasons.
You wrote:
“Before 1978:
Someone like Ms Smith claims the right to refuse to design a website for gay couples on the grounds that it forces her to express approval of gay marriage, which her religion disapproves of.
Those who oppose that view argue--- forcefully--- that by parity of reasoning someone could refuse to design a website for an interracial couple on the ground that it forces her to express approval of interracial marriage, which her religion, Mormonism, disapproves of.
This is a powerful argument --you concede-- which courts would be likely to take seriously, and thus find against the anti-gay web designer.”
No, I do not concede that – you have inferred that because, as things stand, I am relying on the fact that currently there are no religions accepted as such by the S. Ct. upon which Ms. Smith could rely in order to refuse to design a wedding announcement for an interracial couple. Because of this, she cannot claim that her refusal is based on her Mormon religion. But it does not follow from this that prior to 1978, because Loving v. Virginia had already been decided making the right of interracial marriage a constitutional right, precluding any state government from prohibiting interracial marriage, that Ms. Smith could not have legally refused to design a wedding announcement for an interracial marriage in 1977. What you are not getting is the doctrine of compelled speech – that an American citizen cannot be forced against his/her will to make a statement which is contrary to their religious convictions. Even before 1978, but after Loving, if Colorado had a statute prohibiting discrimination based on race, Laure Smith would still have had a constitutional right to refuse to prepare a wedding announcement for an interracial couple based on the argument that she is a Mormon and the Mormon Church prohibits interracial marriage, that is, if a Mormon wanted to marry an African-American in 1977, and went to the head of the Mormon Church and requested that he officiate at their marriage, he would have the constitutional right to refuse, because no one may be compelled to express speech which is contrary to their religious convictions – EVEN IF THEIR RELIGIOUS CONVICTIONS ARE ERRONEOUS. Back in 1977, the Church of Latter Day Saints was regarded by the Supreme Court as a legitimate religion, even though the S. Ct. had held in Reynolds v. United States (1876), that laws prohibiting polygamy were not unconstitutional. So, in 1977, Ms. Smith would have had the same constitutional right to refuse to design a wedding announcement for an interracial couple that she now claims she has the right to refuse to design a wedding announcement for a same-sex couple. The right is the same – the 1st Amendment right not to be compelled to engage in speech which is antithetical to your religious beliefs. There is no violation of the principle of parity of reasoning.
(Continued)
Even in 1977, however, if Smith were not a wedding announcement designer, but a wedding cake baker, she could not have refused to bake a wedding cake for an interracial couple because that would have violated Colorado law (assuming such a law existed in Colorado in 1977) and baking a wedding cake does not involve speech.
In sum, there is no difference in Smith’s argument that she cannot be compelled to design a wedding announcement for a same-sex marriage and her right to have refused in 1977 to design a wedding announcement for an interracial marriage – the Mormon Church prohibited both kinds of marriage at the time that Smith was asked to design a wedding announcement celebrating that marriage. The difference is that today she could not refuse to design a wedding announcement for an interracial couple on the basis that the Mormon Church prohibits interracial marriage, because it doesn’t. However, if the Mormon Church still prohibited interracial marriage today – even after Loving -a Mormon minister could not be compelled to conduct an interracial marriage in violation of his religious convictions. The Loving decision only held that no government may prohibit interracial marriage. The Loving decision does not apply to private citizens, including a Mormon minister or Lorie Smith. And even today, if the Mormon religion still prohibited interracial marriages, the State of Colorado could not pass a statute requiring Mormon ministers to conduct interracial marriages against their religious convictions. The same would be true about making it illegal for Ms. Smith to refuse to design a wedding announcement for an interracial couple contrary to her Mormon religious convictions, because this would constitute compelled speech in violation of the 1st Amendment.
In sum, the interracial marriage argument is a red herring. It does not invalidate Ms. Smith’s refusal to design wedding announcements for same-sex couples. The principle of the parity of reasoning is not violated.
David Zimmerman's argument has absolutely nothing to do with Loving v Virginia, so I'm not sure why you're bringing it up in replying to him. (I mentioned the case, in another connection, but he didn't.)
LFC,
I raised Loving v. Virginia because, otherwise, why would anybody believe that it would be unlawful for Ms. Smith in 1977, before the Mormon Church disavowed its prohibition of interracial marriage, to refuse to design a wedding announcement for an interracial couple, assuming that Smith was Mormon? In the absence of the Loving decision, there would absolutely no basis on which the State of Colorado could claim that a Mormon’s refusal to design a wedding announcement for an interracial couple violated Colorado law. In point of fact, neither before Loving, nor after Loving, could Colorado compel a Mormon to design wedding announcements for interracial marriage, as long as the Mormon Church prohibited interracial marriage.
As it turns out, Smith is not Mormon, she is Christian. So it does not matter what the Mormon doctrine on interracial marriage is now, or was in 1977. Moreover, there is no evidence that Smith has ever refused to design a wedding announcement for an interracial couple. The entire interracial marriage question is irrelevant to the question whether Smith has the right not to be compelled to design wedding announcements for same-sex couples when the Christian denomination she belongs to defines marriage as being between a biological male and a biological female.
P.s. As I understood D. Zimmerman's argument, it is that, by using parity of reasoning, one is led to conclusions that reduce or undermine the persuasiveness or attractiveness (for lack of a better word) of Smith's claim/position.
So parity of reasoning, if I understood his argument, is not a principle (and therefore it cannot be either violated or not violated); rather, parity of reasoning is a device or tool or method that he is using to show what he sees as the undesirable consequences of Smith's position. (That's what the slippery slope argument is about.) Your first answer to him, about what Mormon doctrine said and when it stopped saying that, at least addressed his point, even if it didn't convince him.
Marc:
I too have been thinking about our exchange overnight. I came to grasp the point you make about your position at 6:06 am: viz. that you do not really concede that the slippery slope argument deploying the racial marriage analogy had power before the Mormons gave up their racist doctrine in 1978, a power it lost after 1978. You are committed to the view that if web designing really is speech, then people cannot be compelled to design websites for clients whose conduct they morally disapprove of on religious grounds.
That takes us back to the question of whether web designing is actually speech, i.e. an activity that can be taken to be an expression of the web designer’s own beliefs. I won’t repeat the arguments I made earlier against such a view, i.e. that the issue before the SC really is about freedom of association (and which some SC justices developed in the oral arguments).
As I understood him, David Zimmerman was not making a strictly legal argument. He was saying: If you let Smith refuse to design a wedding website for same sex couples, then what is to prevent her from refusing to design a wedding website for interracial couples -- and is that a desirable consequence?
And your answer is: There is nothing to prevent Smith from refusing to design a wedding website for interracial couples, provided that (1) she is a member of a 'legitimate' religion that (2) currently holds that interracial marriage is against its faith (or doctrine, or core beliefs).
Above comment @9:57 a.m. directed to Marc.
To LFC a 9:57 am:
Yes, that is my argument.
My position is:
Inter-racial marriage is not prohibited by any Christian denomination, and has not been prohibited for several decades, so Smith cannot claim she can refuse to design wedding announcements for interracial couples based on her Christian belief. Her Christian denomination does maintain that same-sex marriage is prohibited, so therefore she can refuse to be compelled to engage in speech which celebrates same-sex marriage, based on her religious convictions.
Back in 1977, a Mormon who designed wedding announcements would have had the constitutional right to refuse to design wedding announcements for interracial couples, because it would have violated her Mormon convictions. If the Mormon Church today still held that it prohibited interracial marriages, then a Mormon wedding designer would still have a constitutional right to refuse to design a wedding announcement for an interracial couple. But since the Mormon Church no longer prohibits interracial marriage, a Mormon wedding announcement designer who refused to design a wedding announcement for an interracial marriage would be violating Colorado law.
So, David is correct: the issue comes down to whether designing wedding announcements which Ms. Smith customizes for each couple constitutes speech protected under the 1st Amendment. I maintain it does; David maintains it does not.
In support of my position, let me point out that in the S. Ct. decision of Hurley v. Irish-American GLBG of Boston, 515 U.S. 557 (1995), the supporters of gay-lesbian rights argued that the refusal of the sponsors of the St. Patrick’s Day Parade were violating Mass. law by refusing to allow the gay-lesbian supporters to participate in the parade. In a unanimous decision, written by J. Souter, the Court held that sponsors of the St. Patrick’s Day Parade were expressing support for “traditional religious and social values” and that compelling the sponsors to include a contrary message by allowing the gay-lesbian supporters to participate in the parade would constitute compelled speech, and therefore was precluded by the 1st Amendment. Ms. Smith has argued that she stands in the position of the sponsors of the St. Patrick’s Day Parade. In his amicus brief, Prof. Wolff rejects this argument, claiming that in the case of the sponsors of the St. Patrick’s Day Parade, the speech at issue is that of the sponsors, not customers of the sponsors. He argues that in Ms. Smith’s case, the speech included in a wedding announcement is the customer’s speech, not Ms. Smith’s speech. I disagree with that, and maintain that to the extent she customizes each wedding announcement with her own creativity, the announcement constitutes hybrid speech, which is partially that of her customer, and partially her own. Further, if a parade can be said to constitute speech advancing a particular point of view, then so can Ms. Smith’s artistic contribution in the context of a wedding announcement constitute speech as well, especially when it is combined with express speech celebrating the marriage of a same-sex couple. In this context, she is not just like the stenographer robotically transcribing Prof. Goldfarb’s lectures.
As I explained (much) higher up in the thread, Marc Susselman is deeply confused about first amendment jurisprudence regarding the free exercise of religion. There is no legal concept of a "legitimate religion" or a "religion accepted as such." Whether the Church of Jesus Christ of Latter Day Saints has this or that as its official doctrine is, quite plainly, irrelevant to the legal question of which beliefs earn their believer first amendment protections on religious grounds.
There are two requirements on such a belief: first, that it be sincerely held; second, that it occupy in the life of the believer a place similar to that which would be occupied by an orthodox religious belief.
A Mormon who thought the church in Salt Lake City was in error when they rescinded their doctrine regarding inter-racial marriage and so persisted in their anti-miscegenationist beliefs would be protected by the first amendment provided their belief satisfied the 2 criteria above.
An individual unconnected from any church or religious tradition who had beliefs regarding the impermissibility of inter-racial marriage which satisfied the 2 criteria above would be protected by the first amendment.
People whose beliefs have nothing to do with God or the spiritual, but whose beliefs satisfy the 2 criteria above are protected by the first amendment. This is how atheistic, non-spiritual pacifists can earn first amendment protections when they're drafted.
Again, the law does not decide which religions or religious beliefs are "legitimate." Of course it doesn't, that would be dystopic.
T.J.
What you have written is irrelevant to the issue at hand. Even given what you have written, Ms. Smith clearly has a current religious conviction against same-sex marriage which protects her from being compelled under the 1st Amendment from expressing speech which is antithetical to that belief. The question remains whether her designing marriage announcement which she customizes for each customer comes within the scope of that 1st Amendment protection.
A Mormon who, in 1977, refused to design wedding announcements for interracial couples would be expressing a religious belief which clearly would qualify as a sincere religious belief recognizing by the orthodoxy of a religion, and therefore would also have qualified for protection against being compelled to design wedding announcements for a interracial couple, assuming, again, that designing such wedding announcements constituted speech protected by the 1st Amendment. In both cases, I believe it does.
For the purposes of the debate at hand, that is all that matters.
I was just listening to an interview (in Spanish) with Pablo Iglesias, ex leader of Spain's leftwing Podemos Party, retired from seeking public office at age 44 and now dedicated to analyzing politics and especially the media, which, he says, is his thing, much more than running for office. Brilliant guy.
Iglesias says that the Chilean left lost the September constitutional plebiscite because it let the right and the center establishment frame the terms of the debate, because the left spent its time answering the right's questions instead of creating the questions which determine the debate.
Here Marc has literally taken over the blog (no one has even bothered to comment on Professor Wolff's last post) by doing the same: the debate about gay rights and the marriage website is, according to Marc, one which is framed in terms of the U.S. Constitution and how the reactionary U.S. Supreme Court will decide.
If one tries to raise the multiple political issues involved, he angrily and arrogantly rejects those questions as "irrelevant" or "stupid" or "sophistical" and we've let him get away with that. Except Aaal everyone now is debating this issue as if it were solely an issue of U.S. Constitutional rights.
That is Marc's terrain and he generally wins when the ideological battle takes place on his terrain.
It's a tribute to the force of Marc's personality and to his debating skills that he can get away with that.
I myself gave up, but a word to the wise....
Marc,
That a belief earns its believer first amendment protections on religious grounds doesn't tell us what the content of such protections is. A sincerely held belief which occupies the same place in the life of its believer as would an orthodox religious belief which says that one ought to appease the gods with a human sacrifice wouldn't protect the believer from prosecution for murder when they act on that belief. Why? If the belief earns its believer first amendment protections, aren't they protected? Well, no. First amendment protections for the free exercise of religion don't protect the practice of human sacrifice.
Once we've decided which beliefs deserve protection, we still have to decide what that protection amounts to.
The question at issue then is whether or not refusing to design a marriage website for a gay couple should be protected on first amendment grounds or whether the government should be able to sanction such a refusal. Is it more like human sacrifice (i.e. not protected even when the relevant belief satisfies the conditions which allow it to fall under first amendment protections) or is it more like wearing a head covering in a drivers license photo (i.e. protected whenever the relevant belief satisfies the conditions which allow it to fall under first amendment protections)?
One reason people have given why we should think it shouldn't be protected is that there are all sorts of other business transactions which someone could refuse to participate in on religious grounds (refusing to make a wedding website for an inter-racial couple, or whatever) and since we don't want those refusals to be allowed, we shouldn't allow for this refusal.
Your response to that line of thought has been to say that protection for those other refusals is legally precluded because there is no "legitimate" religion which would endorse them.
My point is that your response is nonsense. There is no legal concept of a "legitimate" religion or a religion "accepted as such" and so you can't rule out the possibility of legal protections for those other refusals by appeal to them.
Someone whose anti-miscegenationist beliefs satisfied the relevant criteria would earn the very same protections and for the very same reasons as someone whose qualifying beliefs required them to refuse to make a website for a same-sex wedding. If one is protected, then so is the other. And the same would go for all other bigoted beliefs which required their believers to refuse to make websites for some group of people.
It might be that you're ok with that as the outcome, that you think that's exactly what the law should protect. It should be clear by now that on that point, you're going to find a lot of people who disagree with you.
TJ @ 12:35pm,
Quite right. Same point I made the other day.
Susselman is highly misinformed on religious faith.
There was a US Constitution in 1829, but there was no Mormon faith in 1829 because Joseph Smith didn't announce his revelation until the following year. His followers believed deeply in a faith that for many years was not "recognized by the orthodoxy" of any "mainstream" religion. At what point does the faith of a Mormon become legitimate and entitled to the constitutional protections of the First Amendment?
Do not conflate the issue of whether someone believes something deeply on faith with the challenge of how easily it would be to convince a court that someone believes something deeply on faith.
*how easy it would be
s. wallerstein,
Prof Wolff commented on the case a week ago, and mentioned that he had just spent some time face-to-face with his son, who has some involvement with the issues of the case, so it seems natural that there would be continuing discussion on the case. (Also, several of Prof Wolff's last posts didn't really lend themselves to much comment.)
Marc Susselman is the only one trying to defend a position that other commenters do not find persuasive. If there were others taking similar positions, the discussion would also address their points.
he generally wins when the ideological battle takes place on his terrain
You're certainly entitled to that opinion. lol
(To be honest, when I see reams of paragraphs from some commenters, I don't necessarily read them. I just don't have the time.)
T.J.,
I vehemently disagree with you. Your last comment is totally garbled. You are improperly merging religious beliefs and conduct pursuant to those beliefs. Yes, a person has the right to declare, “I believe in the Aztec religion which included a right to sacrifice virgins.” His right to publish a statement regarding that belief would be protected by the 1st Amendment. It does not follow that he could then make a constitutional argument that my right to actually engage in the sacrifice of virgins is protected by the 1st Amendment – there is no speech element involved in the conduct of sacrificing a virgin. The sacrifice of virgins constitutes conduct, and the 1st Amendment does not protect conduct, especially conduct which constitutes murder.
Ms. Smith has the right to declare that she does not support same-sex marriage because it is antithetical to her Christian beliefs. She also has the right to state I refuse to engage in speech which celebrates same-sex marriage, Her religious belief protects her 1st Amendment right not to be compelled to express speech which celebrates same-sex marriage, based on her religious conviction – a religious conviction the authenticity of which you do not question – that marriage is only between a biological male and a biological female. Here, what she is claiming is protected is not conduct – IT IS SPEECH! Your sacrifice example has absolutely no relevance to this issue.
Regarding the counter-examples which my opponents are offering all involve CONDUCT, NOT SPEECH. For example, the photographer; the wedding cake bake (with a limited exception)r; the caterer etc.
You state: “One reason people have given why we should think it shouldn't be protected is that there are all sorts of other business transactions which someone could refuse to participate in on religious grounds (refusing to make a wedding website for an inter-racial couple, or whatever) and since we don't want those refusals to be allowed, we shouldn't allow for this refusal.” First, Ms. Smith has not refused to design wedding announcements for interracial couples. Second, no one has identified any recognized religion which today prohibits interracial marriage. Third, even if a designer of wedding announcements said, “I refuse to prepare wedding announcements for interracial couples because I have a firm belief that it is immoral,” the court would ask this individual: Do you belong to a religion which espouses this belief? When was this religion formed and who formed it? How many adherents belong to this religion? How do you practice your religion, e.g., are there rituals, do you believe in a Supreme Being; if you do not believe in a Supreme Being, do you pray; where and how often do you meet with the other adherents. I guarantee you that an individual who claimed to have a moral conviction that his/her religion held that interracial marriage is immoral could not answer these questions to the satisfaction of any court. And to say, well, it doesn’t matter, it could happen is not a legal argument..
I have been candid on this blog regarding my legal credentials. I have been practicing law for 44 years, in the course of which I have litigated several 1st Amendment cases. You have submitted some 4 comments now expressing views about what constitutes a religion under the Constitution and what would be protected under the 1st Amendment, without sharing your credentials on the basis of which you qualified to offer your opinions. Are you an attorney? A judge? A law professor? If an attorney, have you litigated any 1st Amendment cases?
Marc--- Please spare us the ad hominems.
What ad hominems???
Marc,
You seem not to understand the dialectic of this comment thread, the arguments involved, or how to engage in reasoning about the law generally, so I'll try to explain in a few points of rejoinder.
(1) There are two separate issues: first, does a belief qualify as the sort of belief which grants protection to the believer under the first amendment?; second, if such protection is granted, what does it protect the believer against?
As an illustration of what hangs on our answer to the second question, I offered some examples of things which the first amendment wouldn't protect against (e.g., prosecution for murder) and some things it would offer protection against (e.g., being barred from holding a drivers license unless one violates one's commitment to wearing a head covering). I wasn't drawing any analogy to the Smith case nor was I operating under the assumption that the examples I gave resemble the Smith case in every (or, indeed, any) respect. So in that much you are correct, the human sacrifice is not relevant to every aspect of the Smith case. Then again, it's also not relevant to infinitely many other things I might have been (but wasn't) talking about.
(2) I nowhere merged religious beliefs and conduct pursuant to those beliefs. I was quite careful to keep them distinct.
(3) All of the examples I offered were of refusing to design a website.
(4) That Ms. Smith has or hasn't refused to design a wedding website for an interracial couple is quite beside the point. The point, which you failed to comprehend, is that if we protect Ms. Smith, we would, on pains of irrationality (something which seems less of a deterrent to some than others), have to protect someone who, because of a qualifying belief, did refuse to design a wedding website for an interracial couple. If we don't want to protect the latter, we can't protect the former.
(5) Whether or not any particular case would be decided one way or the other (i.e., whether the anti-miscegenationist could make their case) is determined by the details of that case. The law does not preclude the existence of such a case. If, in fact, there are no people who hold such beliefs and so no such case will ever arise, well bully for us, but that's irrelevant to the legal question. The legal question is the question of what the law would protect if there were such a case.
(6) Maybe you graduated law school long enough ago that you have forgotten how hypotheticals are used to probe legal concepts. What you've engaged in is what law professors call "fighting the hypothetical." But, as should be clear, refusing to grant the antecedent doesn't tell us anything about whether the conditional is true.
(7) I have expressed no views about what the law takes to constitute a religion because, as I've tried to explain, the law takes no view on what constitutes a religion. Views can be religious, in the sense which entails first amendment protections, without being the view of any religion.
I'll aim to leave the matter here since I'm not convinced you're arguing in good faith, so take the last word if it would soothe your ego to have it.
Marc,
You have not answered one of T.J.'s main points in the comment T.J. made at 1:14 p.m.
T.J. wrote that: "There is no legal concept of a 'legitimate' religion or a religion 'accepted as such' and so you can't rule out the possibility of legal protections for those other refusals by appeal to them [i.e., by appeal to the concepts of a 'legitimate' religion or 'religion accepted as such']."
So: has the Supreme Court recognized or endorsed or otherwise validated the concepts of a "legitimate" religion or a religion "accepted as such"? If so, in what case or cases?
p.s. posted my comment @3:16 before seeing T.J.'s @3:08.
"So: has the Supreme Court recognized or endorsed or otherwise validated the concepts of a "legitimate" religion or a religion "accepted as such"? If so, in what case or cases?"
Jefferson and Madison distinguished opinion and belief from acts in the discussion of the Virginia law and First amendment. From Reynolds: "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order."
The aptness of either Rumsfeld or Hurly to 303 is, of course, a political question.
A couple of interesting LDS cases:
Beginning on p. 161:
https://tile.loc.gov/storage-services/service/ll/usrep/usrep098/usrep098145/usrep098145.pdf
and:
https://www.law.cornell.edu/supremecourt/text/136/1
One evening some years ago I was headed west on the Arizona Strip and, out of curiosity, turned off at the Colorado City exit. After a couple minutes looking around my spidy sense sent me a message:
https://www.youtube.com/watch?v=OxOcqVMkcJo
and I quickly got out of there. When I got to St. George I was told that "a bunch of polygs" lived out there. Picked up the same vibe in Modena (west UT) and around some really large dwellings in eastern Nevada.
How many takeovers should RPW permit, s.w.? It happens time and time again. I think I complained about it some years back under whatever name I was then using, to no avail.
Maybe the deeper question is, why do some of us persist in returning to a site that certain people make rather unpleasant? In other words, don't we bear some responsibility for the unpleasantness, don't we encourage what we should discourage at least by ignoring?
aaall,
Thank you, but I don't think what you've said is responsive to T.J.'s point or to my question.
Marc is relying, at least partly, on there being a legal concept -- meaning, in this context, a SCOTUS-recognized concept -- of a "legitimate" religion. T.J. says there isn't one. According to him (or her, as the case may be), there is a legal test for what counts as a sincere religious belief or view, but not for what counts as a legitimate religion.
The fact that Jefferson and Madison distinguished beliefs from acts may, or may not, have some general bearing on the Smith case, but it has no bearing at all, as far as I can tell, on the specific question that I asked @3:16 p.m.
Anonymous @ 5:28pm:
I should like to make a few speculative comments about the case argued before the Supreme Court yesterday or the day before. Since I have no knowledge of the law whatsoever save what my son, Tobias, has explained to me on occasion, my comments have no particular weight. Perhaps Marc Susselman or someone else can comment.
Tuesday, December 6, 2022 LEGAL SPECULATION BY A NON LAWYER
Anonymous,
This whole thing took its own course, following it own rhythm and if you look at it, it says a lot about how power dynamics operate in the real world.
P.s.
In fairness, it may be the case that, even if SCOTUS has not specifically articulated a concept of or test for "legitimate" religion, that notion and the notion of a sincerely held belief will get tangled up or connected in practice (i.e., in the litigation process), which is what I sort of took Marc to be suggesting in his reply to T.J. But Marc didn't put it quite that explicitly. (I can understand the frustration as this thread has wound on, though no one is being forced to read it.)
T.J.
Well, yes, I will take the last word, but not to soothe my ego, but to rebut the spuriousness of your comment. You offer a simulacrum of legal scholarship, encased in pretentious condescension (and David accuses me of engaging in ad hominems!), in an effort to convince the readers of this blog that you know quite a lot about Constitutional law, and that I know little to nothing about it. And still you decline to disclose what your purported qualifications are, which would not require you to reveal your actual identity.
Addressing your comment, your claim that I am fighting the hypothetical is false. The hypothetical is: Suppose someone at some point avowed a sincere belief that interracial marriage is immoral and claimed that this belief was supported by the individual’s religion (antecedent), would this justify their refusal to design wedding announcements for interracial couples (consequence). I in fact answered this hypothetical when I stated that prior to 1977, a Mormon wedding announcement designer would have a constitutional right to refuse to design wedding announcements for interracial couples planning their wedding. I then said, that if, today, that were still the doctrine of the Church of Latter Day Saints that interracial marriage was immoral and prohibited by the Church, then a Mormon who designed wedding announcements would have the right under the 1st Amendment, even today, to refuse to design such wedding announcements, and if this individual lived in Colorado, a charge by the State of Colorado that the refusal violated the CADA, for which she would be fined, it would violate the individual’s 1st Amendment right.
LFC, you claim that I have failed to answer T.J.’s comments about what constitutes a legitimate religion. It is irrelevant, because my position IS PREDICATED ON THE COURTS DEEMING THE INDIVIDUAL’S RELIGION AS BEING A LEGITIMATE RELIGION, EVEN IF THE RELIGIONS IN QUESTION, WHATEVER IT IS CALLED, PROHIBITS INTERRACIAL MARRIAGES. Given the predicate that the courts, including the Supreme Court, accept that the religion in question, whatever test the Court may use to decide that the religion is legitimate, then it follows that a member of that religion who designs wedding announcements would have a constitutional right to refuse to design wedding announcements for interracial couples. And it is not being questioned that Ms. Smith is a Christian; that Christianity is a religion recognized as such under the Free Exercise Clause of the 1st Amendment; and that Christian doctrine maintains that marriage should only be between a biological male and a biological female.
In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the City held that a church within its boundaries which practice animal sacrifice as part of the rituals of the Santeria religion was precluded from engaging in the rituals because they violated an ordinance which prohibited animal sacrifice. The Church challenged the constitutionality of the ordinance as a violation of the Free Exercise Clause of the 1st Amendment. The lower courts sustained the constitutionality of the ordinance. The S. Ct. reversed, stating that the religion originated in the 19ty century when members of the Yoruba tribe were brought to Cuba as slaves. In Cuba, they developed Santeria as a fusion of their traditional African religion and significant elements of Roman Catholicism. They incorporated animal sacrifice into their religious rituals in order to communicate with “orishas” - sprits. “The basis of the Santeria religion is the nurture of a personal relation with the orishas and one of the principal forms of devotion is an animal sacrifice.” The S. Ct. unanimously held that Hialeah’s application of its ordinance prohibiting animal sacrifice to the Santeria Church violated their rights under the 1st Amendment. There is no question that if the Santeria Church maintained that marriage between African-Americans and Caucasians was immoral and sinful in the Santeria religion, a member of the Santeria Church who lived in Colorado who designed wedding announcements would have a right protected by the 1st Amendment to refuse to design wedding announcements for interracial couples.
I wish to express my thanks to Eric for, notwithstanding his disagreement with my views, affirming that my comments on this subject are consistent with Prof. Robert Wolff’s invitation to me to express my views on this matter.
LFC, the only decisions I'm aware of involve balancing actions with a compelling state interest. The Religious Crimes Code of 1883 involved Native American religious rituals and dances like the Sun and Ghost Dances and polygamy. Canada criminalized the same back in the day. Our current mess is in part due to our idiotic War on Drugs (Smith) and led to RFRA. I believe the House passed a clarification to RFRA that indicated it didn't apply to public accommodation laws but it went to the senate to die. I assume Marc misspoke when he paired the words "legitimate" and "religion."
I recall a case in California a number of years ago that involved a brothel owner claiming he was running a religion but it didn't fly and again actions.
May be of interest:
http://robert-clinton.com/wp-content/uploads/2018/09/code-of-indian-offenses.pdf
Perhaps HR 1378 is of interest:
"A BILL
To amend the Religious Freedom Restoration Act of 1993 to protect civil rights and otherwise prevent meaningful harm to third parties, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. Short title.
This Act may be cited as the “Do No Harm Act”.
SEC. 2. Sense of Congress.
It is the sense of Congress that—
(1) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law if the exemption would impose the religious views, habits, or practices of one party upon another;
(2) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law if the exemption would impose meaningful harm, including dignitary harm, on a third party; and
(3) the Religious Freedom Restoration Act of 1993 should not be interpreted to authorize an exemption from generally applicable law if the exemption would permit discrimination against other persons, including persons who do not belong to the religion or adhere to the beliefs of those to whom the exemption is given.
SEC. 3. Exception from application of Act where Federal law prevents harm to others.
Section 3 of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–1) is amended by adding at the end the following:
“(d) Additional exception from application of Act where Federal law prevents harm to others.—This section does not apply—
“(1) to any provision of law or its implementation that provides for or requires—
“(A) protections against discrimination or the promotion of equal opportunity including the Civil Rights Act of 1964, the Americans with Disabilities Act, the Family Medical Leave Act, Executive Order 11246, the Violence Against Women Act, and Equal Access to Housing in HUD Programs Regardless of Sexual Orientation or Gender Identity (77 FR 5662);
“(B) employers to provide wages, other compensation, or benefits including leave, or standards protecting collective activity in the workplace;
“(C) protections against child labor, abuse, or exploitation; or
“(D) access to, information about, referrals for, provision of, or coverage for, any health care item or service;
“(2) to any term of a government contract, grant, cooperative agreement, or other award, that requires goods, services, functions, or activities to be performed for or provided to beneficiaries of or participants in a program or activity funded by such a government contract, grant, cooperative agreement, or other award; or
“(3) to the extent that application would result in denying a person the full and equal enjoyment of a good, service, benefit, facility, privilege, advantage, or accommodation provided by the government.”.
SEC. 4. Clarification of preclusion of litigation between private parties.
(a) Purpose.—The purpose of the amendment made by subsection (b) is to clarify the applicability of the Religious Freedom Restoration Act of 1993, as enacted.
(b) Preclusion.—Section 3(c) of the Religious Freedom Restoration Act of 1993 (42 U.S.C. 2000bb–1(c)) is amended, in the first sentence, by striking “judicial proceeding” and all that follows and inserting “judicial proceeding to which the government is a party and obtain appropriate relief against that government.”.
https://www.congress.gov/bill/117th-congress/house-bill/1378/text?q=%7B%22search%22%3A%5B%22hr+1%22%5D%7D&r=22&s=1
Marc,
Ok. So if a plaintiff says: "I belong to religion X, and religion X views interracial marriage as immoral," then if the Supreme Court, by whatever criteria it chooses, finds that X is a legitimate religion, the plaintiff does not have to design the interracial marriage website. I think I've pretty accurately summarized your position on that point.
Now suppose a plaintiff comes into court and says: "I don't belong to any organized, formal religion, but I have the equivalent of a sincere religious belief that interracial marriage is immoral." And let's say the lower courts determine, and the Supreme Court agrees, that the belief is indeed sincere and that it occupies in the believer's life an important place, a place similar to that of a more orthodox religious belief (say, for example, a belief in the divinity of Jesus or a belief in the existence of an afterlife, or etc.). I assume that in those circumstances, your position would be the same: the plaintiff with the sincere (quasi-)religious belief, but who doesn't belong to any organized religion, does not have to design the interracial marriage website. Am I correct in assuming that that would be your position?
p.s. This is not a trick question. I'm just trying to understand the contours, so to speak, of your position.
LFC,
Yes, that is my position.
But it is highly doubtful that the courts would rule that his sincere belief that interracial marriage is immoral in and of itself constitutes a religion. They would ask, “Is this the only tenet of your religion? What are the other tenets of your religion?” Suppose he asserts, “I believe that inter-faith marriage is also immoral. And I believe that slavery was not immoral, although I do not own any slaves.” The courts, unquestionably would conclude that his beliefs however sincerely held, do not constitute a religion.
Remember that in United States v. Seeger, the S. Ct. wrote approvingly of this definition: “[A] scheme of life designed to obviate [man’s inhumanity to man,] and by removing temptations, and all the allurements of ambition and avarice, to nurture the virtues of unselfishness, patience, love, and service, ought not to be denounced as not pertaining to religion when its devotees regard it as an essential tent of their religion.” If the Mormon belief system consisted only in support for polygamy and a belief that interracial marriage is a sin and is prohibited, I do not believe the S. Ct. would rule that it qualified as a religion under the terms set forth in Seeger. In addition to those beliefs the Mormon religion encourages a strong work ethic; they impose a tithe system to provide the less fortunate members of the Church with financial support; they have a Temple where they meet to worship; they believe in a Supreme Being. No single one of these factors is either necessary or sufficient to qualify it as a religion. A belief system need not be monotheistic to qualify as religion, e.g., Hinduism. There are a range of factors which may combine in different permutations for a belief system to qualify as a religion under the 1st Amendment. A belief system entirely based on the beliefs that interracial marriage, same-sex marriage, and interfaith marriage are all sinful would surely not qualify.
Since the professor once invited jokes, I take the opportunity to submit comment #302: A farmer goes to church on Sunday and sees that he's the only person to show up. The priest asks him "Would you like to hear the service?" The farmer replies: "Well, if only one of my cows came home, I'd still feed her." So the priest does the service, complete with a sermon: Heaven and Hell, fire and brimstone, saints and sinners, condemnation and redemption, on and on for an hour. When the service was over, the priest says "What did you think of the sermon?" The farmer replies: "Well, if only one of my cows came home, I wouldn't give her all the feed."
Marc,
Thanks for your reply.
(As a side point to your comment @6:49 p.m., and specifically the last sentence, I wd note that only some versions or interpretations of Christianity, not all of them, take the view of marriage that Ms. Smith does. Admittedly that has no particular legal relevance to her case, but just as a factual matter it is not the case that all Christians have the same view of this issue, as is clear from having casually followed the news in the last 10 or 15 years re splits within certain denominations/churches, etc.)
"A belief system entirely based on the beliefs that interracial marriage, same-sex marriage, and interfaith marriage are all sinful would surely not qualify."
Or perhaps it's likely that a person using a sham religious claim to justify such discrimination would be sufficiently devious to dress up the claim a bit. Of course, with a little thought a claim of sinfulness could easily be grounded. On the other hand a person sincerely professing that belief system most likely has reasons. If she claims personal revelation like Joseph Smith how does a court deny that? I doubt an U.S court is going to be comfortable or competent going down too many turtles.
John,
That is a very funny joke.
aalll,
During the Vietnam War, a lot of draft inductees who claimed to be conscientious objectors based on flimsy religious grounds like those you have cited had their claims rejected and wound up in Vietnam. The most famous exception is Muhammad Ali. When Ali claimed conscientious objector status based on his Muslim faith, many people wondered how a boxer who could potentially kill somebody in the ring could claim conscientious objection. In point of fact, contrary to what most people think, the S. Ct. did not rule in favor of Ali based on his conscientious objection status. He won because the Court held that he had not been given proper notice of the basis for the rejection of his conscientious objector status, violating his right to due process. Reports have indicated that the members of the Court were extremely troubled by this case, and were concerned about the public reaction if his conviction was not reversed.
There is still at least one somewhat unresolved (imo) and significant point of disagreement between Marc's view of the law in this area and T.J.'s, "unresolved" in the sense that I wd have to do research (which I'm not going to do) to satisfy myself about who is closer to right.
T.J. (see his/her comment on Dec 19 @12:35 pm) maintains that, even though the 1st Amendment refers to the "free exercise of religion," courts do not ask about what "constitutes a religion". They only inquire into the particular claimed beliefs. If they find that the claimed beliefs are sincere and function like religious beliefs in the believer's life, then the inquiry is over: the beliefs fall within the ambit of the 1st Amendment.
Marc, by contrast, maintains that the courts do not simply look at the function in the believer's life of the claimed beliefs, but go beyond that to ask whether the beliefs "constitute" a "religion" or whether they "qualify" as a religion.
Maybe some of this is semantic; I'm not sure. But what I take away is that according to T.J. the courts look at the beliefs themselves and their place in the believer's life, whereas according to Marc they also look at whether the beliefs add up to a religion, or something that looks enough like a religion. Again, I'm not sure how much of this is a semantic disagreement and how much a real one.
It may be that the Sup Ct has not had many opportunities to clarify the law on this, and of course there are areas that never achieve much clarity but remain sort of a mess in the sense that there is no agreement (among judges or experts) on how to approach them. If these messy, contested areas didn't exist, there would be fewer things for law professors to write law review articles about.
LFC,
Ultimately, it does not matter whether T.J. is correct, or I am correct, regarding what constitutes a religion under the 1st Amendment with respect to the issue in question. Even if the Court uses T.J.’s definition, once it determines that an individual’s sincerely held beliefs function like a religion for that person, if among the sincerely held beliefs is a belief that marriage between two individuals of different races is immoral and prohibited within that belief system, or that marriage between two individuals of the same biological gender is immoral and prohibited within that belief system, any state law which would prohibit an individual who holds those beliefs and who designs wedding announcements from refusing to prepare wedding announcements for, respectively, interracial couples, or same-sex couples, would constitute an unconstitutional imposition of compelled speech, in violation of the 1st Amendment.
I suspect that many Americans would find it difficult to regard the Santeria faith, with its combination of tribal rituals and Catholicism, as a legitimate religion, yet the Supreme Court unanimously held that it was a religion entitled to protection of the Free Exercise Clause of the 1st Amendment, to the extent that the City of Hialeah was precluded from prohibiting adherents of that faith from engaging in animal sacrifice within the Hialeah borders. Can there be any doubt that if among the beliefs of the Santeria faith was a prohibition against interracial marriage, that the Supreme Court would have held then, or would hold now, that a member of the Church of the Lukumi Babalu Aye who designed wedding announcements in Florida could be sanctioned or penalized by the State of Florida for violating Florida’s anti-discrimination statute, assuming it had/has a statute identical to the CADA, for refusing to design such wedding announcements for an interracial couple? And, alternatively, if the Santeria faith prohibited same-sex marriage, could the State of Florida penalize or sanction a member of the Church of the Lukumi Babalu Aye who designed wedding announcements for refusing to design a wedding announcement for a same-sex couple?
Post-Script:
Moreover, since animal sacrifice constitutes conduct, not speech, it would be more likely that the S. Ct. would have sustained the constitutionality of the Hialeah ordinance as an appropriate exercise of the City’s police power to control the possible adverse health effects which public animal sacrifice might cause, as compared to compelling speech in the form of a wedding announcement which was antithetical to the Santeria faith.
LFC:
"Ok. So if a plaintiff says: 'I belong to religion X, and religion X views interracial marriage as immoral,' then if the Supreme Court, by whatever criteria it chooses, finds that X is a legitimate religion, the plaintiff does not have to design the interracial marriage website. I think I've pretty accurately summarized your position on that point."
Susselman: "Yes, that is my position."
And there you have it. He's grasped the logic of his own argument (even if, unsurprisingly, he's failed to grasp the moral poverty of that argument). Your patience, LFC, is remarkable.
GJ,
1, The argument is predicated on the S. Ct. ruling that the belief system in question qualifies as a religion entitled to protection under the Free Exercise Clause of the 1st Amendment. There must be more to the religion than the tenet that interracial marriage is immoral. If that is its only, or primary, tenet, it likely will not qualify.
2. You and others would want the Court to hold that no belief system which is opposed to interracial marriage could qualify as a religion. That is, acceptance of interracial marriage is a necessary condition for what may qualify as a religion under the 1st Amendment, ignoring the remainder of its tenets. By the same token, those who are opposed to cruelty to animals would maintain that the Santeria belief system should not qualify as a religion because it practices animal sacrifice. The S. Ct. disagreed with this. Just as some people believe that male circumcision, practiced by Jews, is a barbaric ritual and should be banned. Any law that attempted to do so would violate the Free Exercise Clause as it applies to Jews, and would be unconstitutional. And, moreover, there is a lot more to the Jewish religion than male circumcision.
3. The fact of the matter is that Ms. Smith has never refused to design a website for interracial couples. So this hypothetical is a red herring.
4. You, and others who agree with you, would write the Free Exercise Clause out of the Constitution. Well, it’s there, and there is nothing you can do about it.
I believe I have said enough so that my position is clear. I will, as attorneys say, rest on my comments. I am quite confident that the S. Ct. will rule in favor of Lori Smith, and it will not be, as many of you will claim, because they are a bunch of homophobic bigots. It will because Lori Smith has legitimate constitutional rights which many of you refuse to recognize. As I have said before, you are only tolerant when it comes to expecting others to respect your rights, but not when it comes to you respecting the rights of those who disagree with you.
Marc Susselman: You and others would want the Court to hold that no belief system which is opposed to interracial marriage could qualify as a religion. That is, acceptance of interracial marriage is a necessary condition for what may qualify as a religion under the 1st Amendment, ignoring the remainder of its tenets. By the same token, those who are opposed to cruelty to animals would maintain that the Santeria belief system should not qualify as a religion because it practices animal sacrifice.
You have to love how this guy just invents arguments and stuffs them in the mouths of those who disagree with him.
The First Amendment guarantees freedom of religion, but also from religion. The government may not, generally speaking, prevent you from observing your religion as you define it; but neither may it compel you to practice others' religions against your will.
It is entirely within anyone's rights under the First Amendment to oppose interracial marriage as a matter of religious conviction and to view ritual animal sacrifice as an integral part of the observance of their faith. No one here, as far as I have seen, has argued otherwise. Believe what you will. I don't care.
What the First Amendment should not be understood to protect is for someone who is engaging in commerce, rather than in private worship or other non-commercial conduct, to deprive certain potential customers of the full service of the business (ie, to discriminate against certain potential customers in terms of characteristics such as their religion, ethnicity, or sexual orientation) based on the business operator's religious convictions.
Further, just because an individual religious ritual may be judged illegal (eg, ritual human sacrifice) does not mean that other practices engaged in as a matter of faith-based conviction by that faith community should not deserve the freedom of religion protections of the First Amendment and of article 18 of the Universal Declaration of Human Rights.
Just as some people believe that male circumcision, practiced by Jews, is a barbaric ritual and should be banned. Any law that attempted to do so would violate the Free Exercise Clause as it applies to Jews, and would be unconstitutional.
This involves a completely different set of considerations.
The customers who would be affected by a ruling in 303 Creative are all adults; they are, after all, entering into legal marriages so must have reached the ages of accountability and majority, and are able to fully consent (or decline to consent) to the marriage. The ritual circumcision you apparently are defending (ritual neonatal male circumcision) involves an irreversible surgical procedure being performed on the body of someone who is incapable of consenting, without any medical justification whatsoever.
Should ritual female circumcision conducted according to the parent's (not the child's) religious faith also be protected by the First Amendment?
* the 303 Creative potential customers are all adults, as would be any affected business operators
Eric,
I will respond to only one part of your comment - that male circumcision is not recommended or supported by any medical science. This statement is false, and I will bother to cite the substantial medical literature which demonstrates that it is false.
Regarding the rest of your comment, it is irrelevant nonsense to which I will not waste my time responding, other than to state (1) that Loir Smith's refusal to design wedding announcements for same-sex couples is not compelling anyone to agree with or observe her religious convictions and (2) the Establishment Clause only applies to religious compulsion by government; Lori Smith is not a government, nor an agent of any government.
Correction:
... will not bother to cite the substantial medical literature that demonstrates that it is false.
Marc Susselman,
At least address this question:
Should ritual female circumcision conducted according to the parent's (not the child's) religious faith also be protected by the First Amendment?
Eric,
I would say No. Although I have not studied the issue in depth, I am not aware of any medical studies or authorities who have demonstrated that female genital mutilation has any medical benefit. Moreover, I do not believe it is a religious ritual. It is, as I understand it, a tribal ritual by which males in certain cultures use it to prevent females from experiencing sexual gratification and a means of asserting control over females. I agree with others who believe it is a cruel and barbaric procedure and should be made illegal. This has no baring on whether male circumcision has medical benefits that distinguish it from female genital mutilation.
Prof. Leiter's book Why Tolerate Religion? seems interesting and relevant here. I haven't read it; I just saw some reviews a while ago. I don't recall finding much of anything to take issue with, other than his being certain that religion (as such) is irrational, but that's neither here nor there; the book's position is summarized as follows:
Our reasons for tolerating religion are not specific to religion but apply to all claims of conscience, and...a government committed to liberty of conscience is not required by the principle of toleration to grant exemptions to laws that promote the general welfare.
Also, quite regardless of whether the US Constitution does in fact allow businesses under some circumstances to discriminate on the basis of race, gender, sexual orientation, etc. - I'm not arguing one way or another whether it does; for the sake of discussion, I'll even provisionally concede to Marc that it does - what I'd be more interested in seeing Marc opine on is whether it's a good thing that the Constitution allows this.
Here's how it looks to me (not well-versed in political theory by any means). If you're okay at all with having some form of government for some reason, then necessarily, you're okay in some cases to deem some person(s) fit to wield authority over others' conduct, which means that some forms of coercion - limiting people's choices with the explicit/implicit threat of violence or the confiscation of property or suchlike - are okay in your book. Obviously that sounds highly suspect, and normally it is, but IMO, it isn't clearly unreasonable to think that there might be very good non-moral (or quasi-moral) reasons for the government to exist nonetheless; e.g., one might think it'd be in our interest to secure the common good against the endeavors of capable wrongdoers, or to avoid a Hobbesian state of nature.
Therefore, from a moral standpoint (as distinct from a legal standpoint), I think the principle that "we shouldn't do X if X requires coercion" is merely very plausible under many ordinary circumstances, not unconditionally valid. I'd be curious to see how far Marc agrees with me on this.
I'd be curious because I think one's views on that will inform one's views on the item mentioned previously: Is it a good thing if the Constitution allows some forms of negative, exclusionary discrimination based on race/gender/etc.; or would it be preferable for a society not to allow this, even when some individuals' conscience might positively insist on it?
(In this connection, I also vaguely have in mind the fact that not everyone follows the US in terms of the "freedom of speech." I've occasionally bumped into left-leaning/progressive people from other parts of the world who think the US is silly or stupid not to criminalize certain forms of hate speech. I'm not prepared to say that those people are clearly mistaken, or have a faulty moral compass, or some such.)
Michael,
Nothing I have written suggests that I am opposed to anti-discrimination laws. I believe that government does have the right to prohibit conduct which constitutes discrimination based on race, ethnicity, religion, gender, gender identification, age, etc. I have in fact represented several plaintiffs in state and federal court alleging that they were illegally discriminated against based on their race, their religion, and their gender.
But that is not the issue in the case of Lori Smith. She is not doing anything which is preventing any same-sex couple to get married in Colorado. All she is claiming is that she has a 1st Amendment right based on her religious belief that marriage should only be between a biological male and a biological female she may not be compelled to design wedding announcements for same-sex weddings, and to compel her to do so, or not be allowed to design wedding announcements for heterosexual couples, violates her rights under the 1st Amendment. Her refusal to design wedding announcements for same-sex couples is not preventing any same-sex couple from getting married. You are mixing apples and oranges in your question.
Marc Susselman,
Let me rephrase my previous statement, since you are off and running on something I should have been clearer about.
The ritual circumcision you apparently are defending (routine ritual neonatal male circumcision) involves an irreversible surgical procedure being performed on the body of someone who is incapable of consenting, without any therapeutic medical justification whatsoever.
Ritual neonatal circumcision is a cosmetic surgical procedure performed for religious or cultural—or "tribal"—reasons.
Note the distinction between prophylactic medical interventions and therapeutic medical interventions.
The medical justifications put forth in support of routine neonatal male circumcision are all based on supposed reductions of risks of disease. Whether the potential reduction of risks is great enough to outweigh the potential harms is debatable, with most of the world solidly deciding it is not.
An argument could be made for prophylactic bilateral mastectomies in all women of non-childbearing potential—and in all men, as men have mammary tissue on their chests, too—to reduce the risk of breast cancer. Most would regard such a proposal as ludicrous.
Of all the things that were done to me or I was forced to do as a child and which left a traumatic effect, circumcision is very very low on the list.
In my case at least, until I was a teenager I don't recall being asked my opinion whether I wanted to do things or not or even whether I wanted to eat certain dishes or not or when I wanted to get up in the morning or go to bed.
I finally felt "free" only when I left home for college at age 18.
I know that things have changed, that today's parents grant citizen's rights to their kids as soon as they can nod their heads, but I grew up in the 1950's.
Far more traumatic than circumcision for me was being forced to play sports, which I hated and still hate.
And don't tell me, please, that sports are good exercise and build character. Standing in right field for 9 innings is less exercise than walking around the block, which I've never minded and as for character, I've never seen more mean-spirited competitiveness and verbal bullying than on the playing fields.
Eric,
I regard your comments questioning the therapeutic and moral bases for male neonatal circumcision, which you no doubt know is a fundamental religious procedure in the Jewish religion which has been performed for over 2,000 years, and describing it as “tribal,” and suggesting that it is comparable to female genital mutilation, is one of the most anti-Semitic and insulting comments I have seen on this blog, and as ludicrous as all of your other ignorant comments about the Constitution you have made in this thread. You are an ass-hole. No doubt s. wallertein wiil jump to your defense and condemn me for using uncivil discourse.
Hi Marc,
Just when I make a comment above, which in many ways supports your position on male circumcision, although from a very different angle, you have to insult Eric.
If you had managed to say the same thing without the insults, you'd have won me over to your cause on the issue of circumcision at least.
s. wallerstein,
I posted my comment to Eric without seeing your comment.
When I was a freshman in high school, the trial of Adolph Eichmann began in April, 1961. Our high school history teacher asked the students in the class, many of whom were Jewish, what we thought of the trial. One of the non-Jewish students, the son of a Christian minister, got up and launched into a long, pretentious speech about how Israel had violated International Law by abducting Eichmann from Argentina, and how it had acted “immorally” in doing so – had acted immorally in abducting the murderer of thousands of Hungarian Jews to face justice in Israel. Sitting there, listening to his garbage, I could barely contain myself from getting up and slugging him. Throughout my life, I have continued to encounter assholes like him, and like you, Eric, people who offer these superficial analyses, clothed in erudite language, in order to justify their anti-Semitic views. Eric, you can go to hell.
If I may intervene...
When you're a freshman in high school, you're 14 or 15 and few of us at that age are very skillful at distinguishing nuances.
First of all, I agree with you, Marc, about circumcision. It googled it and you find several articles "circumcision pros and cons" and it seems that it's a decision that's up to the parents since no one when they're born is capable of deciding that kind of thing.
However, as I point out above, generally children's lives are dictated by their parents until they become teenagers. I don't see why the decision to circumcise a child is any
greater violation of a child's autonomy than any other of the multiple decisions that parents make for their children. For example, my parents made lots of decisions about my diet, about what I had to eat (remember the "clean plate club"), which in light of what I now know about nutrition were not healthy nutritional options. Years of a high cholesterol, high fat diet leave an effect, probably more than circumcision does.
Nevertheless, Eric's intention was not anti-semitic. He did not evince hatred towards Jews nor a sense of racial superiority towards them nor a contempt for the Jewish religion and/or culture. Like many non-Jews, he seems to find circumcision to be "weird": I find the idea of the virgin birth to be "weird" and that doesn't make me anti-Catholic.
As the saying goes, “Two Jews, three opinions.” I do not intend to divert the focus of this thread to a discussion of anti-Semitism and its characteristics, but anti-Semitism does not have to rise to the level of hatred of Jews, or support for Hitler’s Final Solution, in order to qualify as anti-Semitism. I disagree with your assertion that Eric’s remarks about neonatal male circumcision did not show contempt for the Jewish ritual – calling it “tribal” and comparing it to female genital mutilation evidences a disparagement of the practice which I equate to contempt. There are many definitions of anti-Semitism, and they do not all coincide. In Debra Lipstadt’s book “Antisemtism – Here And Now,” she offers this definition by historical sociologist Helen Fein:
“A persisting structure of hostile beliefs towards Jews as a collectively manifested in individuals as attitudes, and in culture as myth, ideology, folklore, and imagery, and in actions – social or legal discrimination, political mobilization against Jews, and collective or state violence – which results in and/or is designed to distance, displace, or destroy Jews as Jews.”
Eric’s dismissive and antagonistic remarks about neonatal male circumcision practiced by Jews evidence a “hostile belief” which, in my book, marks him as an anti-Semite. You are entitled, if you wish, to be less condemnatory, but I would not be surprised if he is laughing at you behind your back.
s. wallerstein: Of all the things that were done to me or I was forced to do as a child and which left a traumatic effect, circumcision is very very low on the list.
No doubt. But that was your personal case. Others have had very different experiences. Some of them catastrophic.
I should add that while some may feel inclined to dismiss the issues in this part of the discussion as being trivial, they involve quite profound and complex ethical considerations.
For example:
In the case of administration of routine infant vaccinations, the harm of failing to administer vaccines could be severe illness and even death of the child himself from a disease that could easily have been prevented. These are direct harms to the child, potentially of the greatest possible severity. The vaccines need to be administered prior to the child's reaching the age of consent because the risks for disease that the vaccines are intended to prevent are highest before that age.
What irreparable harm is incurred by the child himself if he is not circumcised before he can decide for himself?
Another example:
Does a parent's religious conviction opposing the administration of medical care for a life-threatening disease (eg, refusing insulin for a child with diabetes and choosing prayer alone) override the child's right to life? And should the parent's right to make that decision be protected under the First Amendment, or does the State have a responsibility to compel the treatment?
Marc Susselman,
I am sad to see you interpret my comments as some sort of personal attack. They were not meant to be.
I used the word tribal in clarifying the procedure I was focusing on because that was the word you chose in describing your understanding of much of female circumcision. ("It is, as I understand it, a tribal ritual by which males in certain cultures use it to prevent females from experiencing sexual gratification and a means of asserting control over females. I agree with others who believe it is a cruel and barbaric procedure and should be made illegal.")
It was not even my primary intention to make a case here for or against circumcision. My point was and remains that because ritual neonatal circumcision involves a potential conflict between the convictions and rights of parent and child, considering parental rights with regard to ritual neonatal circumcision (which you introduced into this conversation) is not helpful for resolving the issues raised by the 303 Creative case.
I don't claim to know the literature regarding female circumcision. But from a cursory search we find, for example (citations omitted):
(1)
"FGC [female genital cutting] is commonly practiced in the Iraqi Kurdistan region, which is particularly concentrated in Erbil and Sulaymaniyah governorates. The prevalence of FGC in the Iraqi Kurdistan Region is around 40%.... The prevalence is close to 100% in some specific rural areas....
Religious obligation or requirement is an important reason (38.8% to 50.3%) for practicing FGC in the Iraqi Kurdistan Region.... Some renowned Sunni and Shi’i Islamic scholars, including a scholar from the Iraqi Kurdistan region have dismissed any association between FGC and Islam and even issued fatwa1 forbidding FGC. However, many people still believe that FGC has religious support and in some countries arguments inspired by Islamic law have been used to claim that FGC is an obligation in Islam. In the Iraqi Kurdistan Region, girls and women who are not cut might be considered to have haram hands, and some people do not eat or drink from their hands."
The investigators who authored this report stated that it is their own belief that FGC is not an Islamic rite; but in interviews of 29 local Islamic religious leaders they found that "most participants indicated that the practice of FGC is primarily attributed to the religion, while others considered it a tradition related to culture or a tradition mixed with the religion." One of the religious leaders they interviewed told them, "FGC is related to the religion because the Prophet (peace be upon him) has said it. Even if it was practiced in the old times, it has come into the Islam sharia and became part of the sharia."
"Knowledge and perspectives of female genital cutting among local religious leaders in Erbil governorate, Iraqi Kurdistan region"
Ahmed HM et al; Reproductive Health (2018) 15:44; DOI 10.1186/s12978-018-0459-x
All right, really trying to wrap things up on my part...
Marc writes: "You are mixing apples and oranges in your question."
But I don't see how, since the question wasn't about prohibiting same-sex couples from marrying; the question was about allowing businesses to refuse service to same-sex couples.
If a businessperson refuses service to someone on the basis of sexual orientation, that's an example of discrimination based on sexual orientation. (So is prohibiting same-sex couples from marrying, but I'm not focusing on that specific example of discrimination.) I'm asking for your position on the morality of this - of businesses refusing service on the basis of sexual orientation - and also for your position as to whether it's a "good thing" (in some sense other than "Constitutionally permitted") for society to allow it. I am not asking whether the US Constitution is correctly interpreted as allowing it.
(I do not see that the term "Constitutional" has the same meaning as e.g. "ethically sound." Nor do I see that the term "discrimination" is clearly inapplicable - in a familiarly inclusive, nontechnical sense - to the refusal of service to gay persons qua gay persons.)
It seems (correct me if I misinterpreted) your response is to say, in effect:
(1) I, Marc, am morally opposed to discrimination on the basis of sexual orientation. But, (2) Ms. Smith is not preventing same-sex couples from marrying; so, (3) Ms. Smith is not discriminating against same-sex couples. And, (4) Ms. Smith's refusal to provide service to same-sex couples is allowable under the First Amendment. So, (5) there is no legitimate objection of any kind to allowing Ms. Smith to refuse services to same-sex couples.
But this wouldn't be a satisfactory response to my questions. I wasn't asking about (4); I provisionally granted that (4) was correct, and asked about something else instead: I asked whether/why in your opinion (5) would follow from (4). But I didn't see that this was answered. Also, it isn't clear how (3) follows from (2). And unless it can be shown that (3) is true, there is an appearance of inconsistency between (1) and (5).
(3)
"The latest Demographic and Health Survey (DHS), implemented in 2014, suggests that 92.3% of married women aged 15-49 years [in Egypt] have been subjected to the practice. A majority (51.7%) believe that the practice is a religious requirement...."
"Female genital cutting in Egypt: Drivers and potential responses"
Wodon Q et al, Development in Practice (2017) 27: 708
DOI: https://doi.org/10.1080/09614524.2017.1330401
Good question, Michael.
Very weird.
I have twice posted a comment (2) for the series (1), (2), (3).
Both times the posts seem to have taken.
But when I refreshed the page, they were gone. Not sure what the problem is.
(2b)
"... al-Safi'i, the founder of one of the four major Sunni schools of law, is said to have supported the apparently less common idea that circumcision is obligatory for males and females alike...." [p 263]
"The Prophet is said to have instructed Umma 'Atiyya to 'be moderate when performing the operation of circumcision on women'...." [p 264]
"... Ibn Qayyim al-Gawziyya traces the roots of female circumcision too back to the Patriach's family by using the Biblical story of Sarah and Hagar.... After having donated her to Abraham and realizing that she had conceived, Sarah became jealous of Hagar, and swore to cut three of her rival's limbs. Abraham, fearing that Sarah would mutilate Hagar's nose and cut her ear, ordered, instead, to pierce her ears and to circumcise her.... [C]ircumcision thereafter became a custom (sunna) for all women and thus a means of remembrance and revival of the custom of Abraham." [p 265]
"Normative Islam versus local tradition: some observations on female circumcision with special reference to Egypt"
Avner Giladi, Arabica (1997) 49:254
DOI: https://doi.org/10.1163/1570058972582489
(2a)
"[T]he origin of the aesthetical consideration which already in the Middle Ages motivated Muslim women to practice circumcision, may be found in African mythology which tells of the bisexuality of certain gods and consequently that of human beings. 'Every person is believed to be endowed with masculine and feminine "souls".... [A]s the young boy grows up and finally is admitted into masculine society, he has to shed his feminine properties [by means of circumcision] ... The same is true with the young girl.... Only thus, being circumcised, can the girl claim to be fully a woman and thus capable of sexual life.'" [p 258]
(There is actually a part 2c as well, but since Blogger keeps deleting it, I give up.)
Suffice to say that for many who participate in female circumcision (and there are communities where 90% or more of the girls are subjected to it), the procedure is a religious rite.
If ritual circumcision of a boys is not barbaric and should be protected by law, then surely the same applies to ritual circumcison of girls.
Eric,
Your comparison of female genital mutilation to neonatal male circumcision is typical of your absurd reasoning. In female genital mutilation, the girl’s clitoris is amputated. It is intended to eliminate her ability to experience sexual gratification as an adult, and thereby reduce the likelihood that she will be promiscuous and unfaithful to the male to whom she is betrothed. She is turned into a sexual slave for the male, with two purposes – to provide sexual gratification for her male owner; and to bear children.
The equivalent procedure on males would be castration and/or amputation of the penis. Male neonatal circumcision as practiced by Jews for over 2,000 years involves the removal of the foreskin, only. As millions of Jewish males could attest, it does not eliminate their ability to experience sexual gratification (whether it diminishes the degree of gratification is impossible to know), nor does it prevent their ability to inseminate females and become fathers.
Female genital mutilation, by contrast, has serious, potentially long-term adverse medical consequences which can result in infection and often death. See https://www.who.int/teams/sexual-and-reproductive-health-and-research-(srh)/areas-of-work/female-genital-mutilation/health-risks-of-female-genital-mutilation
There are no comparable adverse medical problems associated with male neonatal circumcision. In fact studies have indicated that it reduces the incidence of STD’s, including HIV. Under these circumstances, the fact that in some cultures female genital mutilation is a religious ritual would not preclude it being outlawed, even here in the United States as a violation of the Free Exercise Clause of the 1st Amendment. Not all religious rituals are afforded protection under the 1st Amendment, including human sacrifice should the Aztec religion enjoy a revival. If Jews, as part of their religion, engaged in castration or penis amputation, it would not be protected under the 1st Amendment either.
Marc,
I agree with what you just said.
I've known countless Jewish males in my life, all of them circumcised, none of them with any serious problems as a result of their circumcisions.
And since it is true, as you say, the circumcision reduces the incidence of STD, it may have had some positive effects in their lives. One article on circumcision, found by googled it, suggests that circumcised males "last longer" during the sexual act, thus increasing their partners' pleasure.
I don't quite understand why Eric wants to make such an issue out of it. I don't think it's anti-semitism. Would an anti-semite express the admiration for RPW that Eric has expressed? I believe that he also admires Chomsky.
Michael,
I have earnestly tried in my comments above to provide the answers to the very questions you are now asking. I will attempt to clarify this one more, and last, time, because I cannot afford to continue to spend time on this issue, which appears to have become a fool’s errand.
You continue to confuse services which are purely conduct – like taking photographs at a same-sex wedding, or providing catering services to a same-sex wedding – with services which necessarily involve some aspect of speech, e.g., designing wedding announcements which are uniquely customized for each wedding couple, or baking a wedding cake on which the couple wants a written message to be placed on the cake using icing. Anti-discrimination laws which address conduct, and only conduct, do not violate the constitutional rights of a business which provides services which consist solely of conduct, e.g., photography, catering. However, when the anti-discrimination law is extended to apply to speech which is an inherent part ot the service being provided, then it can, but not necessarily, result in a constitutional violation.
So, looking at your syllogism, (5) only follows from (4) when the service being provided in (4) necessarily involves the use of speech, as in the designing of unique wedding announcements. (5) would not follow from (4) if the service being provided in (4) was taking photographs at a same-sex wedding. (3) follows from (2) in Ms. Smith’s case because her refusal to design wedding announcements for same-sex couples does not prevent the same-sex couple from getting married. She is discriminating against them in the sense that she is willing to design wedding announcements for heterosexual couples, but not same-sex couples, but this is protected because the service she is providing necessarily involves the inclusion of some speech, even if the speech is only writing the names of the same-sex couple in the announcement. In this context, where we are distinguishing between conduct and speech – in this case speech which is antithetical to the religious beliefs protected under the 1st Amendment – there is no inconsistency between (1) and (5), as you claim. Discrimination based on speech is constitutionally protected; whereas discrimination based on conduct is not.
This is my last effort to clarify the issue. If you and others continue to fail to see my point, it is futile and I cannot justify spending more time on it. I have an appellate brief to write for filing by tomorrow in the Michigan Court of Appeals, and the violation of my client’s due process rights by his former governmental employer – a wrong which I have a chance to redress by filing the brief – is much more important than continuing to repeat myself on this blog, using speech which apparently is falling on deaf ears. Sayonara.
s. wallerstin,
Some anti-Semites will tell you that their best friends are Jewish. Some of them even turned in their best friends to the Nazis during WWII.
Michael,
Good question, but I don't think you're going to get an answer on this:
I'm asking for your position on the morality of this - of businesses refusing service on the basis of sexual orientation - and also for your position as to whether it's a "good thing" (in some sense other than "Constitutionally permitted") for society to allow it. I am not asking whether the US Constitution is correctly interpreted as allowing it.
Marc Susselman,
There are a large variety of forms of female circumcision, only one of which you describe. (The quote above attributed to the prophet Muhammad touches on this.)
The equivalent procedure on males would be castration and/or amputation of the penis.
Many forms of female circumcision involve removal of or incision into just the clitoral tip, the visible part of the clitoris. As you may, or may not, be aware, the visible part of the clitoris is just a small part of the whole organ; so amputation of the penis would not be the equivalent of these forms of female circumcision.
It is intended to eliminate her ability to experience sexual gratification as an adult, and thereby reduce the likelihood that she will be promiscuous and unfaithful
Many of the adherents believe otherwise (as I cited above); and many others who might agree with you (or, rather, who would say that, in their view, a benefit of the procedure is that it reduces sensitivity, allowing for acts of sexual intimacy to last longer) would say that that is what God intends.
On the other hand, you're right, there are even today many people who believe that it is a sin to enjoy certain forms of sexual activity, especially in women. But don't they have the right to believe what they will as a matter of religious faith?
Female genital mutilation, by contrast, has serious, potentially long-term adverse medical consequences which can result in infection and often death.
Female circumcision carries risks of long-term adverse consequences, including death. True. So does male circumcision.
Granted, the risk of death is probably much higher with female circumcision, but to say it "often" causes death would require qualification. Especially if we are talking about communities where 90%+ of the women have undergone the procedure and the community continues to believe it is necessary.
Regardless, aren't people entitled to take risks with their health if they believe their religion requires them to?
In fact studies have indicated that it [male neonatal circumcision] reduces the incidence of STD’s, including HIV.
Please cite studies showing male neonatal circumcision reduces the incidence of HIV. (I'll save you the effort: You can't because they do not exist.)
typical of your absurd reasoning
No comment.
Sorry, I missed that part of Michael’s question. Do I think it is morally a good thing that people should not be compelled to say or write statements they do not believe in? Yes, I do, even if the statements in question constitute a renunciation of beliefs or conduct which I find wrong or offensive. I believe compelling speech and indoctrinating people to assert things they do not agree with is wrong. During the McCarthy era, public employees were required to recite loyalty oaths. If you refused, you were fired. Several of these cases made it to the S. Ct. and the Court, to its credit held that compelled loyalty oaths were unconstitutional. By the same token, I believe it would be morally wrong to compel Lori Smith to engage in speech which is antithetical to her religious convictions, even though I do not agree with her religious convictions. And, in a prior comment, I stated that I believed that Reinhold Niebuhr and Paul Tillich would agree with me.
Marc Susselman & s. wallerstein,
edit: Just came across this recent report
"Non-therapeutic male circumcision in infancy or childhood and risk of human immunodeficiency virus and other sexually transmitted infections: national cohort study in Denmark"
Frisch, Simonson; Eur J Epidemiol (2022) 37:251
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9110485/
from the introduction:
"[N]o [randomized clinical trial] or carefully conducted observational study with long-term follow-up has ever demonstrated an HIV-protective effect of circumcision performed in infancy or childhood. Moreover, as of 2020, concerns about markedly increased rates of serious glans injuries, urethrocutaneous fistulas and other surgical complications following circumcision in infancy or childhood compared to late adolescence or adulthood prompted the U.S. President’s Emergency Plan For Aids Relief (PEPFAR) to halt financial support for circumcisions prior to Tanner stage 3 development."
The investigators examined national health registry records in Denmark to compare the incidence rates of sexually-transmitted infections occurring over a mean of 22 years of follow-up between (non-Muslim) men who had been circumcised in childhood for non-therapeutic reasons and (non-Muslim) men who had not been circumcised.
They reported:
"Compared with genitally intact males, rates among circumcised males were not statistically significantly reduced for any specific STI. Indeed, circumcised males had a 53% higher rate of STIs overall (HR = 1.53, 95% CI: 1.24–1.89), and rates were statistically significantly increased for anogenital warts (74 cases in circumcised males v. 7151 cases in intact males, HR = 1.51; 95% CI: 1.20–1.90) and syphilis (four cases in circumcised males v. 197 cases in intact males, HR = 3.32; 95% CI: 1.23–8.95). In this national cohort study spanning more than three decades of observation, non-therapeutic circumcision in infancy or childhood did not appear to provide protection against HIV or other STIs in males up to the age of 36 years. Rather, non-therapeutic circumcision was associated with higher STI rates overall, particularly for anogenital warts and syphilis."
They also discussed results from two earlier studies using a different methodology from New Zealand. The smaller of the two found a lower rate of STIs after early-childhood circumcision; the larger found no statistically significant difference.
(I haven't studied this area in any depth, so if there are studies out there showing otherwise, I'd be happy to take a look at them.)
All right. Well, in the spirit of the season... ;) Thanks for taking the time to respond. While I still have doubts and questions about your views, I think it's well past time for me to let this one go.
I'm sure it's frustrating and exhausting to try to manage so many separate arguments and objections all at once for days on end - not that it gets you "off the hook" (and not that I don't often see where your interlocutors are coming from!), but I'd probably want to lob a few insults and profanities at my interlocutors, too, if I were in your position. These can be pretty intense conversations, but I don't think they'd go on quite so long if there weren't some mutual respect and sense of common values. So, see you around, and happy holidays. (And apologies to anyone who reads this and vomits in their mouth a little.)
From https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3684945/:
“Three randomized trials in Africa demonstrated that adult male circumcision decreases human immunodeficiency virus (HIV) acquisition in men by 51% to 60%,1 and the long-term follow-up of these study participants has shown that the protective efficacy of male circumcision increases with time from surgery. These findings are consistent with a large number of observational studies in Africa and in the United States that found male circumcision reduces the risk of HIV infection in men.1 Thus, there is substantial evidence that removal of the foreskin reduces the risk of male heterosexual HIV acquisition. However, the effect of male circumcision on reducing HIV acquisition among men who have sex with men is unclear. There may be protection against insertional but not against receptive anal intercourse, so men practicing both forms of sexual intercourse may have limited protection associated with male circumcision.
“In addition to HIV, male circumcision has been shown to reduce the risk of other heterosexually acquired sexually transmitted infections (STIs). Two trials demonstrated that male circumcision reduces the risk of acquiring genital herpes by 28% to 34%, and the risk of developing genital ulceration by 47%.1 Additionally, the trials found that male circumcision reduces the risk of oncogenic high-risk human papillomavirus (HR-HPV) by 32% to 35%.1 While some consider male circumcision to be primarily a male issue, one trial also reported derivative benefits for female partners of circumcised men; the risk of HR-HPV for female partners was reduced by 28%, the risk of bacterial vaginosis was reduced by 40%, and the risk of trichomoniasis was reduced by 48%.1,2 It should be noted that no large-scale randomized controlled trial has assessed the benefit of neonatal male circumcision throughout several decades, which is when many of the potential health benefits would be realized. Such a trial is probably not feasible. However, observational data of men predominantly circumcised during childhood support the findings of the 3 randomized trials conducted in Africa1 and the long-term medical benefits of male circumcision.”
Quoting Eric:
“Regardless, aren't people entitled to take risks with their health if they believe their religion requires them to?”
This demonstrates how disingenuous you are. Your original point regarding criticism of the Jewish ritual of neonatal circumcision was that it is a violation of the infant’s rights to perform a surgical procedure they have not consented to.
But female genital mutilation (it’s called “mutilation” for a reason) which is generally performed on infant or teenage girls, against their will, you are now willing to claim is alright if their parents’ religion “requires” them to do it. No, it is not alright when the consequences are often infection, resulting in death, and when the purpose is to reduce the female’s ability to enjoy sexual intercourse, consequences which are not the result of male neonatal circumcision. And your willingness to resort to a disingenuous argument in order to make your specious point confirms, in my mind, your anti-Semitism.
Eric: The ritual circumcision you apparently are defending (ritual neonatal male circumcision) involves an irreversible surgical procedure being performed on the body of someone who is incapable of consenting, without any [therapeutic] medical justification whatsoever.
...
[In contrast to routine childhood vaccination, in which the risk-benefit analysis is highly time-sensitive], what irreparable harm is incurred by the child himself if he is not circumcised before he can decide for himself?
Marc Susselman: ... studies have indicated that [male neonatal circumcision] reduces the incidence of STD’s, including HIV
Eric: Please cite studies showing male neonatal circumcision reduces the incidence of HIV.
Marc Susselman: "Three randomized trials in Africa demonstrated that adult male circumcision decreases human immunodeficiency virus (HIV) acquisition in men by 51% to 60%...."
You ignored the end of the article, which stated:
"It should be noted that no large-scale randomized controlled trial has assessed the benefit of neonatal male circumcision throughout several decades, which is when many of the potential health benefits would be realized. Such a trial is probably not feasible. However, observational data of men predominantly circumcised during childhood support the findings of the 3 randomized trials conducted in Africa1 and the long-term medical benefits of male circumcision.”
Until a certain age, which depends on child-raising practices, children don't consent to anything which happens to them.
Everybody has their favorite list of things which parents impose on children against their consent and which harm them.
For some queer theorists and feminists, it's gender roles. I recall several years ago a series of articles in a feminist blog lauding parents who somehow were raising a genderless child to save them from the horrors of having a gender.
Eric insists that male circumcision is high on the list of harmful things done by parents to children
Although I've never sought to develop Jewish friendships, most of my long-term close friends are Jewish and none of them have ever mentioned any problems which resulted from being circumcised or that their family members have had any.
As I said above, if you google "circumcision pros and cons", you'll find several articles listing the positive and negative sides. It's up to parents to decide just as these days they decide whether to "assign" (the politically correct term) a gender or not.
Child-raising is not an exact science and as I said above, everyone has their favorite theory about what horror imposed on their children by their parents is the worst. Some say gender roles, others say white sugar and still others say circumcision.
Which one you pick says more about you than it does about the welfare of your children.
In my case, it was my mother's insistence that I eat lima beans. She served them at least once a week, and every time I complained about how I hated them, she would say, I thought you loved lima beans. I had to devise all sorts of artifices to avoid eating them - like spitting them into a napkin and going to the bathroom to flush them own the toilet.
I never knew I had had a foreskin, and never missed it.
Last year at this joyous season the Ghost of Christmas Future paid me a visit:
"Whooooo, whooooo, David. At this time next year, in celebration of the Holiday Season, "The Philosopher's Stone" will contain a long and vituperative exchange on the benefits and harms of foreskin removal.... a Holiday Bris Fest. Be sure to contribute."
So, this is my contribution.
Happy Festivus, everyone.
David Zimmerman,
Happy holidays to you too and to everyone else.
Marc,
I also used to hide food that I didn't want to eat in my napkin and likewise, flush it down the toilet.
I wonder if that it is a common trick. I don't recall anyone teaching me it.
Do all or most kids discover that trick on their own?
s. wallerstein,
Kids are natural born geniuses when it comes to not eating food they hate.
A man is looking for a shop to have his watch repaired, so he goes into a store displaying watches.
A man inside asks, “Can I help you?”
“I want this watch repaired,” says the customer.
“I’m sorry. I don’t repair watches.”
“Well, how much for a new one then?”
“I don’t sell watches.”
“You don’t sell watches?”
“No, I don’t sell watches.”
“Clocks, you sell clocks then? How much for a clock?”
“I don’t sell clocks.”
“You don’t sell watches, you don’t sell clocks?”
“No, I’m a mohel,” replies the man behind the counter. “I perform circumcisions.”
“Then why do you have all those clocks and watches in the window?”
“If you were a mohel, tell me, what would you put in your window?”
The Jewish version of modus tollens:
https://www.youtube.com/watch?v=gu4S3ZqylhY
Happy Holidays to all the people whom I have annoyed this past year!
s. wallerstein: Eric insists that male circumcision is high on the list of harmful things done by parents to children
That would be a misreading of what I have said here, as I can think of much more harmful things that parents do to children. But that's neither here nor there.
The question at hand is whether performing a surgical procedure on a child without his consent, a procedure that could be delayed until he is old enough to give his consent, is ethically justifiable. If it is not generally justifiable, should it be regarded as justifiable under a religious exception for the beliefs of the parent? And if one argues that it should be, is it not religious chauvinism and hypocrisy to say that the same does not apply in the case of circumcision of girls without their consent based on the religious beliefs of their parents?
Marc continues to ignore the question, "what irreparable harm is incurred by the child himself if he is not circumcised before he can decide for himself?"
He says he is not that familiar with circumcision of girls, but does not believe it is performed for religious reasons. Understandable and hardly a crime. Yet on being presented with evidence that it is a sacred, even obligatory rite for many practitioners (parents and religious leaders), he continues to insist it is a "barbaric," "tribal" practice which deserves no First Amendment protection and which should be banned.
Marc Susselman: your willingness to resort to a disingenuous argument
Says the guy who made such a fuss about what he called an argumentum ad absurdum.
If it must be spelled out, I am laying out a defense of female genital cutting as Devil's advocate to expose the poverty of your position. I do not personally believe there is any ethical justification for non-therapeutic cosmetic surgical procedures on any healthy children without their own consent, whether to satisfy the parents' religious obligations or for any other reason.
The parent (the family, the religious community, the tribe) is not the owner of the child's body. The parent is just a caretaker, whose duty is to keep the child safe until she is old enough to make her own choices, both as to whether she accepts the faith of her family and whether she wishes to undergo such a procedure.
Eric,
No one is saying that parents are the owners of the child's body.
As far as I can see, male circumcision is a relatively harmless surgical procedure, done by Jewish parents as part of a tradition or if you want to claim, as part of a tribal tradition.
We all seem to be members of one tribe or another, perhaps of several. I'd say that you're a member of a leftwing anarchist tribe in your opinions and undoubtedly your lifestyle if you live by your principles. If you have children, you probably raised your children according to your principles.
You undoubtedly see the leftwing anarchist tribe as somehow "better" or "more rational" than the Jewish tribe. I might even agree with you on that in some aspects especially if we're talking about Orthodox Jews.
However, do we ever really reach an age where a person is "old enough to make her own choices"? It seems rather that we journey from cave to cave, from tribe to tribe.
Maybe Bertrand Russell or someone like that "made his own choices", but I have my doubts.
Given all the above, what's the problem with male circumcision?
So, putting aside the constitutional and 1st Amendment aspects of Eric’s question, he asks, “Is it morally defensible for a parent to justify performing a surgical procedure on an infant which the parent believes, rightly or wrongly, is required by the parent’s religion, which medical studies indicate, generally speaking, has more therapeutic benefits in the long run for the child, than adverse consequences, and which there is no evidence diminishes the child’s ability to enjoy sexual intercourse when the child becomes an adult, without the child’s consent?”
“If the answer to this question is that it is not immoral, shouldn’t the answer be the same for a different medical procedure performed without the child’s consent, but for equally strongly held religious reasons, for which there is substantial medical evidence that it often has very adverse medical consequences for the child, both as a child and as an adult, little positive medical consequences to recommend it, and, in addition, often adverse consequences for the child’s ability to enjoy sexual intercourse when the child becomes an adult?”
Using David Zimmerman’s parity of reasoning methodology, I will leave it to the readers to determine how they think this question should be answered.
s. wallerstein and Marc Susselman,
I am busy at the moment, but I invite you to read this very well-reasoned essay by Oxford/Yale ethicist Brian D. Earp, whose views I largely share on this matter. It addresses a number of the points you have raised (eg "what different does it make, it's such a benign procedure?"):
Female genital mutilation (FGM) and male circumcision: should there be a separate ethical discourse?
I thought I was merely inventing a hypothetical until I searched for ritual amputation on DuckDuck Go. Ouch!!!
"It will because Lori Smith has legitimate constitutional rights which many of you refuse to recognize. As I have said before, you are only tolerant when it comes to expecting others to respect your rights, but not when it comes to you respecting the rights of those who disagree with you."
To the contrary, I recognize and endorse Ms. Smith's right to express herself freely, within reason, and to refrain from expressing herself when she believes that doing so would violate one of her religious fantasies. My point was simply about the logic of your argument. Gay people shouldn't have to go elsewhere, just as interracial couples shouldn't have to go elsewhere. I proposed a reductio (of sorts). If, ultimately, you're prepared to accept the reductio and align yourself, potentially anyway, with racists, then, well, so it goes.
But why not question the assumption that religiously motivated conscientious beliefs should be given special status in the first place (read Leiter's book, referenced upthread)? Suppose that, because of family traditions and upbringing dating back centuries, I have a purely secular obligation of conscience that prohibits me from writing "congratulations" on a gay couple's wedding cake. No court would uphold my alleged right to refuse service to the couple, even though it's based on an obligation of conscience that is an equally serious obligation of conscience to that of Ms. Smith. Courts in Canada, at any rate, would hold that I cannot refuse, and that such is a justified curtailment of my right against compelled speech.
The problem is that courts in the U.S. and Canada confer a privileged status on religious beliefs: they, unlike beliefs that are merely conscientiously held, require *special* accommodation. Canada's Supreme Court has never articulated an intellectually defensible rationale for this. We should insist on such a rationale, though, for unless one is mustered, the special status religious beliefs enjoy is arbitrary.
GJ's comment reminds me of one of the aspects of the 303 Creative case discussion that does not sit well with me.
Recall that a key part of Susselman's argument is that "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."
During the Supreme Court oral arguments, there was the following exchange between Alito and Colorado Solictor General Eric Olson. (transcript p 82)
ALITO: In light of what Justice Kennedy wrote in Obergefell about honorable people who object to same-sex marriage, do you think it's fair to equate opposition to same-sex marriage with opposition to interracial marriage?
OLSON: Yes, because--in how the law applies, not in--in the --the discussion with folks because, of course, honorable people have different views on this issue. ...
ALITO: Well, do you think Justice Kennedy would have said that there are--that it's honorable to oppose--to discriminate on the basis of race?
OLSON: No, I don't think so.
Can honorable people in 2022 have different views on interracial marriage? Apparently not.
And yet there are still these people who feel that being opposed to same-sex marriage can be viewed as compatible with being an honorable person. I can see that even if someone felt that such a view is not honorable, given the makeup of the Court you would almost have to lie and say you agree if you were presenting a case before them and you were asked that question.
Marc Susselman December 23, 2022 @ 1:02 PM,
"which medical studies indicate, generally speaking, has more therapeutic benefits in the long run for the child, than adverse consequences, and which there is no evidence diminishes the child’s ability to enjoy sexual intercourse when the child becomes an adult"
That's a misparaphrase of what I asked, inserting your own take.
Again, see Brian Earp's essay, linked above.
Marc Susselman December 22 @ 7:09 PM: You ignored the end of the article, which stated:
"It should be noted that no large-scale randomized controlled trial has assessed the benefit of neonatal male circumcision throughout several decades, which is when many of the potential health benefits would be realized. Such a trial is probably not feasible. However, observational data of men predominantly circumcised during childhood support the findings of the 3 randomized trials conducted in Africa1 and the long-term medical benefits of male circumcision.”
I didn't ignore anything. I was busy, and the authors' statement doesn't change what I said.
Those authors, writing a decade ago, were extrapolating from studies that were hopelessly confounded by variables the original investigators neglected to, or were unable to, control for.
In some of those studies, uncircumcised men who were patients at STI clinics were found to be more likely than circumcised men to have HIV or to acquire HIV. That would seem to be a strong indication that circumcision might be a useful tool to prevent HIV--except that circumcision status is not randomly distributed across communities. It's strongly tied to ethnicity, class, and other characteristics that influence the pool of potential sexual partners, which is one of the most important factors determining risk for infection with HIV and many other STIs. So you can't conclude from the observational data of those studies that circumcision per se would be an effective prophylactic measure.
(In the early years of the AIDS epidemic, Haitians were identified in some regions as a group at high risk for the disease, relative to those of many other ethnic backgrounds in the US. But it would be a mistake to conclude that Haitians are biologically more susceptible to HIV. Association is not causation. The explanation was entirely social: HIV was introduced into Haitian communities earlier than into other communities. And since Haitians, just like everyone else, were more likely to choose sexual partners from within their own social groups, they were more likely to be exposed to the virus in the early years before it had had a chance to spread widely in other communities.)
The randomized trials from Africa would be a step in the right direction in trying to overcome some of these limitations. But the results from those trials are unlikely to be relevant in other settings (eg US and Europe), where healthcare systems and many other relevant factors are very different. And regardless, even if the results from the African trials are valid and perfectly match results that would be expected in the US, that still doesn't address the fact that the African studies only examined circumcision of adults, which is not what's at issue in this discussion.
I have been without telephone and Wi-Fi service since December 23, and therefore did not see the most recent comments by Eric and GJ. As reluctant as I am to continue this thread beyond its inordinate length, I do feel compelled to respond to GJ and Eric’s comments.
You both claim to be the final arbiters of what is “moral” and “immoral” in the context of marriage. GJ takes the position that regardless what the law and the U.S. Constitution may say about the right to have state approved same-sex marriage, it would be immoral to oppose it, and therefore it is immoral for Lori Smith to claim, regardless whether her claim is or is not protected by the 1st Amendment of the U.S. Constitution, to refuse to design wedding announcements for same-sex couples. What you and Eric fail to appreciate is that the history and concept of the ritual of marriage, as originally practiced for thousands of years, is inextricable from procreation and religion and/or law. See https://en.wikipedia.org/wiki/Marriage; and https://theweek.com/articles/528746/origins-marriage. The purpose was to ensure that any offspring would be entitled to inherit the property of the biological father. Since the ritual was liked to procreation, the notion of same-sex marriage, or the morality/immorality of same-sex marriage did not exist.
Marriage rituals thereafter evolved into religious ceremonies, and in turn became inextricably bound with religion. Before there were nation states, the ritual of marriage, even in pagan religions, was a religious ceremony approved and sanctioned in the religion of the people who were getting married. There was no concept of marriage outside of religion, whether the religion was a pagan religion, a non-monotheistic religion, or a monotheistic religion. As nations evolved and adopted laws about marriage, they adopted the rituals which already existed in the religion of the dominant populace of the nation, many of which – but not all –prohibited inter-faith marriage; interracial marriage; and/or same-sex marriage. Marriages which did not comply with the prevailing religion, and in turn with the prevailing law – i.e., cohabitation without the sanction of a marriage ceremony - were automatically deemed “immoral.”
(Continued)
You wish to divorce (pun intended) the notion of morality in the context of marriage from this history and maintain that, regardless what the U.S. Constitution says, opposition to same-sex marriage is itself per se immoral, and therefore Lori Smith’s position is likewise immoral. What you again fail to appreciate is that in the Obergefell decision, Justice Kennedy, writing for the majority, based the decision that states could not prohibit same-sex marriage on the concept of Substantive Due Process under the 14th Amendment, a right which would not exist but for the 14th sAmendment. Yet, while the basis for protecting same-sex marriage derives from a constitutional provision, you want to divorce that protection from other protections clearly and unequivocally expressed in the same document, e.g., Lori Smith’s right under the 1st Amendment not to be compelled to engage in speech which is antithetical to her 1st Amendment right of religious freedom. Your claim that Ms. Smith’s position is “immoral” disregards the morality has nothing to do with what constitutes marriage under the law, which, according to J. Kennedy, protects the right under the 14th Amendment, notwithstanding that in some religions practiced in the United States, same-sex marriage is deemed immoral. If you wish to analyze the right of same-sex marriage outside the context of the Constitution, then you lose that right, and are left with the views of those religions which regard same-sex marriage as immoral. The fact that you believe the views of these religions to be themselves immoral is meaningless, because they have as much right to decide what is moral and immoral as you do. The only thing which saves you from their views of immorality is the 14th Amendment of the Constitution, but you cannot accept the benefit that the 14th Amendment affords to same-sex couples and insist on disregarding the right which the 1st Amendment affords to Lori Smith.
Eric, I question the motive for your preoccupation with the morality/immorality of male neonatal circumcision as practiced by Jews. There are many adult Jewish males who have been circumcised who do not complain that the procedure was performed without their permission; many of them also happen to be attorneys. If they thought that their rights had been violated by a procedure which was conducted without their consent, they could sue their parents for having subjected them to what you claim is an immoral procedure. I know of no such lawsuit ever filed in an American court, or any other court. Moreover, Jews do not demand that non-Jews accept their ritual of circumcision. Gentiles who have adopted the practice, like Queen Victoria did for all of her sons, have done so on their own volition.
In addition, a review of the article you have linked to written by Prof. Brian Earp – another self-proclaimed expert on morality – indicates that of the 8 variations of female circumcision, only the 1st form listed – Type 1a, removal of the clitoral hood or prepuce only, is comparable to the form of circumcision practiced by Jews. All of the remaining 7 forms of female circumcisions – from 1b, removal of the clitoris with the prepuce; to Type IIIb, removal and apposition of the labia majora, and Type IV, pricking, piercing, incising, scraping and cauterization of the female genitalia – are far more invasive, medically inadvisable and harmful than either circumcision practiced by Jews, or Type 1s female circumcision. If you oppose the other 7 types of female circumcision on moral and/or legal bases, I am with you. But opposition to these 7 forms of female circumcision do not justify your opposition to circumcision as practiced by Jews, even taking into consideration the extremely rare instances when the Jewish ritual is not properly performed. I suggest that you stick to opposing the 7 forms of female circumcision which are fare worse than Jewish circumcision, and leave the Jews alone.
"GJ takes the position that regardless what the law and the U.S. Constitution may say about the right to have state approved same-sex marriage, it would be immoral to oppose it."
I suppose I would say that, just as it's immoral to oppose interracial marriage, it's immoral to oppose same-sex marriage.
But that misses the larger point. Why should religiously motivated conscientious beliefs be given special status in the first place?
Marc, your version of how we got here is sort of a just so story we tell ourselves because the reality is mostly written in blood.
aaall,
Your writing style has a certain cryptic poetry which I appreciate and admire, but this time what you say is so cryptic that I have no idea what you are referring to.
Does the story written in blood have to do with male circumcision (where there is actual blood) or are you referring to the repression and oppression of gay people (which at times has led to bloody crimes and in certain societies to execution)?
One of the above? Both of the above? None of the above?
s.w., I was referring to Marc's marriage and morality story which seems burdened by presentism while the past is another country.
I had the Eurasian late Neolithic y-chromosome bottleneck in mind. Back in the day lots of males never reproduced. The best explanation (so far) is patriarchal clan rivalry amongst early agriculturalists and pastoralists that would have resulted in death or slavery for men on the losing sides while the women would have been amongst the spoils and would have survived to pass on their genes.
aaall,
Thanks for the explanation.
aalll,
The past is never dead. It’s not even past.
aalll,
The aesthetic charm of your poetic use of the English language, admired by s. wallerstein, aside, poetry and its lyrical appeal do not necessarily make for a cogent argument. I would not cite Frost’s “Mending Wall” as a basis for opposing my neighbor’s right to place a fence on our mutual property line. And your reference to my description of the origins of the ritual and practice of marriage as having its roots in the heterosexual union between a biological male and a biological female as no more than a “Just so story,” i.e., an apocryphal folk tale lacking in authenticity, is itself lacking in scholarship. The history of the ritual and practice of marriage in the sources I cited are not apocryphal, and link the practice which existed even before the institutionalization of religion and nation states to a union between a biological male and a biological female as a means to ensure that the legitimate offspring of the union were entitled to inherit the father’s property. Consequently, the prospect of procreation was an integral part of the concept and practice of marriage. As much as you may find this anthropological background to the history and basis for the practice of marriage distasteful, your personal preferences cannot alter the past, a past which continues to reverberate in the present.
What you and those who find this past history of the basis for the practice and ritual of marriage distasteful fail to understand is that this history would continue to predominate today in the United States, and continue to allow states to prohibit same-sex marriage, but for the presence of the 14th Amendment in the U.S. Constitution, which Justice Kennedy interpreted to preclude states from prohibiting same-sex marriage. But for J. Kennedy and the majority’s interpretation of the 14th Amendment with its protection of Substantive Due Process as taking the definition of marriage out of the hands of the religiously devout, there would be no right to same-sex marriage in the United States, and those of the same gender who wished to be accorded the right to marriage would still be left at the mercy of the religiously devout, many of whom would scorn and spurn them, and some of whom would be willing to resort to the blood letting which you, and I, find contemptible. However, those who support the right to same-sex marriage, a right afforded to them under the 14th Amendment, may not at the same time that they are demanding that right under the 14th Amendment, choose to disregard and eviscerate concurrent rights granted to others under the Constitution under the 1st Amendment’s protections freedom of speech and freedom of religion, which in turn entail that the religiously devout who are opposed to same-sex marriage and believe that it is sinful – views which I do not share – can be compelled under penalty of being fined and put out of business to engage in speech which is antithetical to their religious beliefs. Supporters of the right of same-sex marriage want to enjoy the benefits of the 14th Amendment at the same time as denying, and indeed penalizing, those who claim the right not to be compelled to engage in speech they do not agree with. This constitutes liberal bullying of the worst, and most hypocritical, sort. Were those who espouse this position left with their rights pre-Obergefell, they would continue to be subject to the spurning and scorning of the religiously devout, and to the blood-letting you condemn, without the protection of the 14th Amendment. Their rights under the 14th Amendment go hand in hand with the 1st Amendment rights of the religiously devout, who, while they can no longer prevent or prohibit same-sex marriage, still retain their equally important rights under the 1st Amendment not to be compelled to approve of that right in their speech or writing – including Lori Smith’s 1st Amendment right to design wedding announcements for heterosexual couples, but not same-sex couples.
I don't know if anyone can say for sure how marriage arises because it arises before historical records exists.
There may be multiple reasons for marriage to have come into being and they may differ from society to society.
The fact that in many pre-historical societies women were property traded between powerful men makes it still more difficult to pinpoint exactly what marriage was about, if it was about one thing, before historical records, such as the Old Testament, come into being.
Marc,
Sorry, but I'll stick by my comment above.
In my experience everybody or almost everybody uses prehistory to justify whatever they want to justify in current society. Socialists find socialism in prehistoric societies, feminists find matriarchy, capitalists find markets, and now those who believe that marriage is about procreating legitimate heirs find that way back before any records of that exist.
As I said above, I don't know if anyone can say what prehistoric "marriage" was about and that includes myself, so I have no theory.
My grasp of history begins more or less with Thucydides and I don't opine about anything that happened before he sat down and chronicled his times.
s. wallerstein,
Fascinating. You were able to respond to my comment which I have attempted to post several times, without success, and which does not appear on my screen. Something very strange going on.
Marc,
I read your comment in the email I receive. I imagine that anyone interested in this conversation also receives your comments by email. I have no idea why your comments do not appear in the blog itself.
Marc, should you see this: As s.w. points out the varieties of human pair bonding long predate written history. I referred to your property story as a "just so" because there were also matriarchal societies with different distribution protocols and property wouldn't have been an issue anyway prior to the development of agriculture and pastorialism. We are too often still in thrall to Bronze and early Iron Age stories that frame things just so.
Kennedy believed the 14th Amendment to say "X" but those still on the Court who believed it to say "Y" are now in the majority, i.e. those protections can disappear with the stroke of a pen. The meaning depends on what any current majority decides based on priors that can have little or nothing to do with text or precedence.
You believe her objections are solely out of deeply held religious convictions. Maybe, but I doubt it and that is as irrelevant as it was with the county clerk in Kentucky. What hasn't been established is the nature of what "speech" may be involved. In the Kentucky example it was purely ministerial. What seems to have concerned the gang of three on the SC is if it material or merely incidental. Without an actual case we will never know.
As you are likely aware, there is concerted effort on the right to demonize LGBTQ folk. The involvement of ADF likely means the 303 case is a bad faith exercise - one step in a agenda to roll back public accommodations laws.
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