Religious liberty and the Romance of Orthodoxy

by John Holbo on April 9, 2015

“This is the thrilling romance of Orthodoxy. People have fallen into a foolish habit of speaking of orthodoxy as something heavy, humdrum, and safe. There never was anything so perilous or so exciting as orthodoxy.” – G.K. Chesterton

Long post, hastily hammered. I’m hammering, specifically, a Rod Dreher post, since (I admit) I have become quite addicted to watching him chew the theological scenery re: the Indiana stuff. But, in criticizing, I’m not just piling on with more pizza parlor people snark, I hope. I think he’s confused, but what he says does raise interesting issues. I will attempt to be only mildly sarcastic around the edges, in the hopes of good conversation all round.

Dreher writes:

On the conservative side, said Kingsfield [Dreher’s pseudonymous law prof. correspondent], Republican politicians are abysmal at making a public case for why religious liberty is fundamental to American life.

“The fact that Mike Pence can’t articulate it, and Asa Hutchinson doesn’t care and can’t articulate it, is shocking,” Kingsfield said. “Huckabee gets it and Santorum gets it, but they’re marginal figures. Why can’t Republicans articulate this? We don’t have anybody who gets it and who can unite us. Barring that, the craven business community will drag the Republican Party along wherever the culture is leading, and lawyers, academics, and media will cheer because they can’t imagine that they might be wrong about any of it.”

Kingsfield said that the core of the controversy, both legally and culturally, is the Supreme Court’s majority opinion in Planned Parenthood vs. Casey (1992), specifically the (in)famous line, authored by Justice Kennedy, that at the core of liberty is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As many have pointed out — and as Macintyre well understood — this “sweet mystery of life” principle (as Justice Scalia scornfully characterized it) kicks the supporting struts out from under the rule of law, and makes it impossible to resolve rival moral visions except by imposition of power.

“Autonomous self-definition is at the root of all this,” Prof. Kingsfield said. We are now at the point, he said, at which it is legitimate to ask if sexual autonomy is more important than the First Amendment.

For liberals like myself, this is a topsy-turvy view. I think of religious liberty as an aspect of individual liberty. I’m not sure I endorse Kennedy’s exact phraseology, but it’s close enough for government work. Dreher and Kingsfield take almost the opposite view. For them religious liberty functions as a check or curb on individual liberty. Their concern is to maintain a safe space for orthodoxy. This is quite explicit later in the post.

The professor brought up the book The Nurture Assumption, a book that explains how culture is transmitted to kids.

“Basically, it says that culture comes through your peer group,” he said. “The most important thing is to make sure your kids are part of a peer group where their peers believe the same things. Forming a peer group is hard when it’s difficult to network and find other parents who believe what you do.”

While each family must be a “little church” — some Catholics call it a “domestic monastery,” which fits well with the idea of the Benedict Option — Kingsfield says the importance of community in forming moral consciences should lead Christians to think of their parishes and congregations as the basic unit of Christian life.

Hearing Kingsfield say this, I thought about how there is a de facto schism within churches now. It will no longer be sufficient to be part of a congregation where people are at odds on fundamental Christian beliefs, especially when there is so much pressure from the outside world. I thought of Neuhaus’s Law: where orthodoxy is optional, it will sooner or later be proscribed. It is vital to find a strong church where people know what they believe and why, and are willing to help others in the church teach those truths and live them out joyfully.

Since there is value in orthodoxy you have to be able to make it non-optional. This necessary power to restrict liberty is ‘liberty’.

This isn’t as Orwellian as I am making it sound. The view even makes liberal sense, up to a point, for more or less the same reason that Fifty Shades of Gray makes liberal sense (I haven’t read it, but I hear it’s got bondage in it). It isn’t crazy to call the right to engage in consensual bondage ‘freedom’. If that’s freedom, why not the comparatively more abstract bonds of orthodoxy, with all the attendant vigor and rigor? As Chesterton writes: orthodoxy is “the equilibrium of a man behind madly rushing horses, seeming to stoop this way and to sway that, yet in every attitude having the grace of statuary and the accuracy of arithmetic.”

So long as participating adults are free to opt out of these kinky communities at any point!

The general picture is of little spheres of non-liberal community embedded in the overall framework of a free, liberal-democratic society. As Dreher says, you just have to shift your sense of the ‘basic unit’ of freedom from the individual to the group. Groups are free to define themselves. But then individuals, within groups, will necessarily be less so.

This picture is problematic when children are involved.

Bondage dungeons are ok if everyone is an adult with a safe word. Any community for consenting adults only, with clearly marked exits, is ok by liberal lights, pretty much no matter how illiberal its internal hierarchies and arrangements. It’s all about consent.

What about orthodox religious communities? Can non-consenting minors be compelled to grow up in non-liberal bubbles of orthodox community until they reach adulthood? Obviously, yes. If their parents say so. This is settled law. Yet this is problematic. Dreher would, I think, have to agree with what I’ll call the Abraham Principle. If someone is a credible threat to the health and safety of his child – even if he believes God commands it! – Child Protective Services should step in. There’s no other way to run the railroad. Dreher worries the state will seriously abuse its privilege of defining ‘serious abuse’, but he wouldn’t deny that this privilege is also an obligation. Saying what sorts of practices are so damaging that they violate the rights of children is, predictably, going to be a difficult, unavoidable issue.

The issue of how it is permissible to raise and educate gay (and transgender) children is going to be one such issue. This proposition is, I think, what Dreher is most concerned to resist. I think he thinks no orthodox Christian teaching/practice concerning homosexuality (and transgender status) could ever legitimately be presumed to rise to the level of a threat to a child’s health and well-being. He’s worried the state may soon decide otherwise. I think he’s maybe right about the latter; wrong about the former.

But let me complete our circuit around our prospective, non-liberal orthodox bubble.

Besides the issue of minor children, there will be problems at the margins, where the orthodox community semi-overlaps the public sphere. Cases will predictably arise in which adults who have not consented to be part of this orthodoxy find themselves burdened by the practices of the orthodox. The common denominator with the child case is, obviously, lack of consent.

Bakers and florists who refuse service are colorful instances. They are burdening customers with their orthodoxies when they could be acting as ‘commmon carriers’ of whatever good/service they provide. Tax issues are less exciting but more wide-spread and consequential. Any organization that enjoys tax-exempt status is, in a sense, being subsidized by citizens who may not approve of what that organization does, or stands for. The issue here is structurally similar to the NEA ‘piss christ’ and Robert Maplethorpe controversies of yore. Should ordinary citizens, scandalized by this stuff, be forced to pay for it via taxes (or even just tax exemptions for organizations than sponsor it)? There is a certain logic to the notion that state-sponsored art should be bland, agreeable art. But if that logic is good logic, there would be a certain logic to extending it to all education and religion (that involves tax-supported or just tax-exempt status.) Most everyone is in favor of a bit of unorthodoxy somewhere along the line. Spice of life! So we would want the bland mandate of pan-agreeableness to lapse at some point. But at what point?

Before we try to sort this out, let’s notice what’s going on at an even higher level of abstraction. Dreher is basically endorsing the logic of multiculturalism. Cultural rights. Group rights. Conveniently for me, he sees this very well and concedes that it is, in principle, problematic. So I don’t have to argue it. I can just point out that what I said, above, about how Dreher and Kingsfield think religious liberty is a curb on individual liberty is only half the story. The truth is that they want it both ways.

But let’s stick with multiculturalism/orthodoxy and its individualist discontents, in the abstract. Let’s be sure we see the problem, before I try to pin it on Dreher. If you insist that both group rights and individual rights be given more or less absolute weight, you generate contradictions. Because if groups have the right to preserve themselves, this will infringe the rights of individuals who find themselves unconsentingly contrained by orthodoxy. And if individuals have the right to autonomous self-determination, the fabric of orthodoxy will start to fray.

There is pretty obviously no fix for this problem. But it’s not like we were seriously expecting life to present us with a perfect political philosophy of liberalism, without any nagging antinomies or incommensurabilities of value. If this is the kind of view you want to go for – liberalism with a communitarian character – there are better and worse ways to kludge through, day by day. Dreher picks a bad way.

Here it is. You oblige liberalism to produce contradictions between group rights and individual rights, by demanding strong protection for both. Then, when contradictions show up right on schedule, tut-tut about how this disaster goes to show how liberals have become illiberal! (The fools! We warned them!) And then, in the ensuing confusion, you get to have your cake, in the spirit of autonomy, and refuse to serve it to someone else, in the spirit of orthodoxy.

Unpacking that last step a bit more fully: if you find yourself trapped within an orthodox community from which you wish to dissent, treat this as an outrage to your inviolable personal sphere of autonomy. (Liberalism has been betrayed!) But if someone else says their personal autonomy is infringed by your orthodoxy, take this occasion to mock justice Kennedy’s phraseology and insist that ‘liberty’ means orthodoxy. True liberalism allows for orthodoxy! (What has happened to liberalism that people don’t know this?)

What allows this heads-I-win-tails-you-lose approach to seem plausible is a patina of by-being-against-liberalism-I’m-the-true-liberal. You seem keen-sighted in two senses: you see the breakdown of liberalism, also a truer form of it, just over the horizon. (Would that we could get there!) The truth is that you got exactly what you damn well asked for but you don’t like it unless the contradictions break your way, not in favor of the other guy. But even life couldn’t be so mysterious as all that, surely.

(If it’s any consolation, Chesterton employs the same sleight of hand, using ‘orthodoxy’ as a proper name for one orthodoxy but also to denote the generic, contrarian joys of adopting beliefs those around you find shocking. That is, he uses ‘orthodoxy’ to mean orthodoxy and liberty. Just as Dreher uses ‘liberty’ to mean liberty and orthodoxy. Convenient stuff, once you get the hang of never cutting your own throat with it.)

To illustrate: the parts of Dreher’s post not devoted to deploring the tragic impossibility of orthodoxy today are largely given over to deploring its inescapability. Kingsfield and Dreher lament liberal orthodoxy in elite culture and academe. Christians marginalized! Forced into the closet!

Obviously this sort of tu quoque is irresistibly fun (if that’s your idea of fun.) But if liberals should hate themselves, since they officially hate orthodoxy, then friends of religious liberty should love liberalism, since it’s actually orthodoxy. Right? Can you turn the tables without turning both sides of the table? That would be a trick!

Maybe being forced to hang out with a bunch of same-thinking folks has its good side? (This is Dreher’s whole deal. So he should at least consider that he himself might be right.)

Dreher has an easy response, of course. Just because he likes some forms of orthodoxy doesn’t mean has has to like them all. ‘I’m not into Fifty Shades or liberal academe, hence not Fifty Shades Of Liberal Academe. Not my bag!’ But this won’t do at all. If religious liberty is just the right to enforce orthodoxy at the community level; if that isn’t automatically deserving of respect; then religious liberty isn’t automatically deserving of respect. We don’t just assume it has value.

Either that or we confront one of those much-despised ‘mysteries of life’. I’m willing to extend to Dreher the liberal courtesy of a bit of mystery. But we seem to be back at bad old autonomous selves, just at the level of community, not self, and Dreher doesn’t want to rest his case on relativist clap-trap, I’m sure. What to do?

At this point Dreher has another obvious response: orthodoxy is not ok when it amounts to elite hegemony. If there is no free exit because there is nowhere to go (but down) then liberalism has broken down. I’m actually not all that interested in raining on Dreher’s liberal academe pity party. It seems to give him pleasure. I’ll just note that if he’s right, the point applies to another area from which there is no free exit (for 18 years): childhood.

You know what? Post plenty long already. Better make this Part 1 of 2. (And who knows whether next week will contain enough time for me to write Part 2?)

But here’s the short version of where this is going. It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad. But once you yourself don’t believe that – because, honestly, everyone knows better today – would it be ethical to raise a (perhaps) gay child while intentionally concealing from them the possibility of living like (oh, say) one of the nice, happy gay people I’m reasonably sure Rod Dreher must know?

I am not, by any means, missing the fact that Dreher thinks he has religious objections that go beyond whether these people are ‘nice’. The question is: do these objections justify imposing orthodoxy?

Of course the government needn’t step in. But that doesn’t mean you have good ideas about parenting, just because the government needn’t step in.

{ 429 comments }

1

Robespierre 04.09.15 at 10:19 am

This may sound rather arrogant, but I think religious freedom, as defined in law, is defined especially poorly in the United States, and some problems of application stems from this. Rather than something along the lines of “people won’t be stopped from practising their religion, whatever it tells them to do”, I’d rather it had been something like this:

1) The law is the same for all.
2) The law does not deliberately inconvenience (or favour) religious people for its own sake.

Actually, I’d say this extends to personal conscience, not merely religion.

2

ZM 04.09.15 at 11:05 am

I am not really sure you’ve hit the nail on the head with looking at this as a liberalism vs orthodoxy issue. I think your third last paragraph sort of demonstrates this:

“It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad. But once you yourself don’t believe that – because, honestly, everyone knows better today – would it be ethical to raise a (perhaps) gay child while intentionally concealing from them the possibility of living like (oh, say) one of the nice, happy gay people”

In this paragraph you shifted from a scenario where the ethics of homosexuality and its social acceptance were evaluated using liberal philosophy (or conversely, using orthodox religious theology) , to an evaluation of what the ethical approach is using our current knowledge and experience

The latter is quite modified from your early approach , since it is more based on what the right thing to do is if you weigh up all the evidence.

Of course to get this evidence you would need a liberal approach, unless you decided to run lengthy confined social experiments instead (which is not very ethical)

But — as I was just mentioning in the other thread — other matters where liberalism has applied — like in emitting lots of greenhouse gasses from burning fossil fuels in order to fly to see bird conservation efforts in far away South America instead of local ones — may just as easily turn out to have bad consequences. In relation to gay people liberal approaches have proved good, but for emiting ghg liberal approaches have proved quite bad.

So — as your last paragraph shows — your judgement depends on evidence of benefits and harms accruing to actions, rather than resting on liberal or orthodox attitudes to actions per se

3

David 04.09.15 at 11:23 am

Just a couple of quick points before this discussion disappears irrevocably into the darker and more inaccessible reaches of American politics, where few non-Americans can follow.
The essence of the liberal approach to religious belief is that everyone is entitled to believe that their religion is true in the privacy of their own minds. But they are not allowed to act as if it was true in real life, if this would break the civil laws, or harm (or even inconvenience) other people. This approach actually requires quite a sophisticated and even skeptical attitude to one’s own beliefs, and a degree of tolerance for those of others. It’s been causing major problems in monotheistic societies for the last couple of hundred years.
The other point, more speculatively, is that politics in the last thirty years has moved sharply in the direction of subjectivity: the construction and mobilization of identity groups among those who “feel” that they are discriminated against, persecuted, insufficiently appreciated etc. (And yes some of them have been, but that’s not the point). The inevitable result is that culture and politics increasingly feature what people subjectively feel, and many controversies, especially those involving “victims,” are covered by the media simply repeating what the main actors say, without any analysis. This started on the Left, but can be used, of course, by anyone, and it has been gratefully adopted by the Right in many countries. If you privilege my “feelings” which have been hurt, as opposed to asking me for some pragmatic proof that my interests have been damaged, then virtually anything can be claimed as a religious or other ideological principle which I must defend and you must respect.

4

marcel 04.09.15 at 11:48 am

[No longer lurking, silently, silently … ]

Besides the issue of minor children, there will be problems at the margins, where the orthodox community semi-overlaps the public sphere. Cases will predictably arise in which adults who have not consented to be part of this orthodoxy find themselves burdened by the practices of the orthodox.

Yup.

The NYTimes has a piece about this today. specifically about Haredi (ultra-orthodox Jewish) men holding up airline flights when they find that they are seated next to women other than their wives. Imagine if one felt a religious commandment not to be adjacent to gays, Blacks or Jews. But a woman…

From the article:

But multiple travelers, scholars and the airlines themselves say the phenomenon is real. The number of episodes appears to be increasing as ultra-Orthodox communities grow in number and confidence, but also as other passengers, for reasons of comfort as well as politics, push back.

“It’s very common,” said Rabbi Yehudah Mirsky, an associate professor of Judaic studies at Brandeis University. “Multiculturalism creates a moral language where a group can say, ‘You have to respect my values.’”

Anat Hoffman, the executive director of the Israel Religious Action Center, which has started a campaign urging women not to give up their seats, said, “I have 100 stories.”

5

ZM 04.09.15 at 11:49 am

“But they are not allowed to act as if it was true in real life, if this would break the civil laws, or harm (or even inconvenience) other people”

We have a religious group in Australia that is concerned about refugees. To show this concern they protest in political offices and get arrested and then go to court. Would the liberal interpretation of this in America think the cruel government was being liberal, and the religious protestors orthodox/illiberal?

6

marcel 04.09.15 at 12:02 pm

I meant to add that one obvious solution to the situation for Haredi men is to buy 2 tickets, select adjacent seats on the airplane, a middle and either window or aisle, and leave the middle seat vacant. This would permit them to follow the injunctions of their religion and not inconvenience others.

7

bianca steele 04.09.15 at 12:08 pm

@6

Speaking as someone whose seats just got reassigned, with a six year old now seated by herself several rows forward from her parents, that might not work.

ZM,

Not sure where you got the idea that David was expressing the US view? No one has suggested that the right to political speech and protest is protected as freedom of religion.

8

ZM 04.09.15 at 12:10 pm

“I meant to add that one obvious solution to the situation”

Another one is that since flying emits a great deal of dangerous ghg it can be quickly phased out, so then Haredi men will just have this problem on trains

9

Jon W 04.09.15 at 12:16 pm

I’m struck by what Dreher thinks a law banning abortion is, if it’s not an attempt “to resolve rival moral visions . . . by imposition of power.” In answer to David, though, the American idea of religious liberty, understood to be part of the Constitution at least from the 1960s through the Smith decision in 1990, has been that government needs to make exceptions from its laws for religious believers unless the government has a good enough reason for imposing its rule on believers and nonbelievers alike. (We think of this as liberal.) All the work here, natch, is done by the question of what reasons are good enough — but as John said, there’s no clean answer to any of this.

10

ZM 04.09.15 at 12:18 pm

bianca steele,

“Not sure where you got the idea that David was expressing the US view? “

I though he was explaining American liberalism for non-Americans. In Australia our Liberal party is our right wing party so liberalism is a bit different here.

He said : “Just a couple of quick points before this discussion disappears irrevocably into the darker and more inaccessible reaches of American politics, where few non-Americans can follow. The essence of the liberal approach to religious belief is that everyone is entitled to believe that their religion is true in the privacy of their own minds…”

“No one has suggested that the right to political speech and protest is protected as freedom of religion”

Yes but he said liberalism thinks government laws are above any other moral injunctions , religious, conscience etc. and these latter are just for in the privacy of one’s own mind. So religious people protesting against the governments refugee laws would be orthodox not liberal (which holds government laws higher)?

11

bianca steele 04.09.15 at 12:24 pm

ZM,

David specifically started out saying he wanted to get in a non-American post before the Americans took over with their special interests. I’ve been reading David’s comments for a while, especially those explained France to the non-French, and haven’t noticed him ever tending to agree with the American posters on issues like these, or claiming to be an expert on the differences between the US and elsewhere.

Maybe John H. would have some interest in writing a coda applying the OP to the Australian Liberal Party.

12

The Modesto Kid 04.09.15 at 12:27 pm

Kind of interesting to think about how Abraham and Isaac would play out in the contemporary US. (ISTR Alice Waters devoted a fair amount of “The Drama of the Gifted Child” to that story, is that right? It’s been a long time.)

13

ZM 04.09.15 at 12:28 pm

bianca steele,

Oh I read him back to front.

Such a coda would be interesting since the Australian Liberal Party has the view that everyone has “the right to be a bigot” — at least it did hold this view until Jewish community groups got as cross as muslim groups, and then the attorney general put this amendment to our hate speech laws on the back burner since we have to be united as Team Australia to fight ISIS in the middle east

14

The Modesto Kid 04.09.15 at 12:29 pm

Pretty sure Flannery O’Connor has a story that’s a retelling of Abraham and Isaac, have forgotten the details however.

15

The Modesto Kid 04.09.15 at 12:36 pm

If religious liberty is just the right to enforce orthodoxy at the community level; if that isn’t automatically deserving of respect; then religious liberty isn’t automatically deserving of respect.

This seems to miss something, viz. that liberal orthodoxy does not have the authority of the supreme being behind it like Dreher’s orthodoxy.

16

Rich Puchalsky 04.09.15 at 12:37 pm

Dreher: “Small-o orthodox Christians had better grasp that the religious liberties of Jews and Muslims are our own religious liberties, and make friendships and tactical alliances across these boundaries.”

But this is exactly what they can’t do. They can’t do this because they are invested, culturally and politically, in using the power of the state to suppress other religions in the public square and boost Christianity. I haven’t seen a principled religious-freedom argument from the right in some time: it always comes down to “America is a Christian country” or something like that. They should not have allied themselves with religious and racial bigots.

At a more general level, a lot of this has to do with religious conservatives discovering once again that capitalism is no friend to a small-c conservative cultural order. Once again, their political alliances have been bad.

John Holbo: “It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad. But once you yourself don’t believe that – because, honestly, everyone knows better today – would it be ethical to raise a (perhaps) gay child while intentionally concealing from them the possibility of living like (oh, say) one of the nice, happy gay people I’m reasonably sure Rod Dreher must know?”

Have you read _The Nurture Assumption_? I have, and it’s not a religious book, not is it a manual on how to program your child. It goes through a lot of research (probably somewhat dated now) to argue for something that seems fairly believable: that a good deal of childrens’ core personality attributes and culture are worked out by interactions within their peer group, and that their parents don’t have as much to do with it as parents usually think. It really has little to say about intentional concealment of the existence of something or other, and more about the importance of who your kids actually interact with day to day. Which is something that people have pretty much been allowed to control, in various ways, and it would be quite a change to say philosophically that they can’t.

17

Robespierre 04.09.15 at 12:38 pm

@Zm #5:

I think they are breaking the (unjust) law to follow their conscience and draw attention to an injustice, and I think they are right to do so. I also think the State should apply its own laws as long as they stand, and punish violators.

18

Russell Arben Fox 04.09.15 at 12:39 pm

John,

Sorry for the length of the comment…

I think you’re on to something really important here–something that, should Rod take the time to read through and think about what you say, I suspect he’d really have to take the time to think about a respond to. The key is the way in which you focus in on a concept of religious liberty which “functions as a check or curb on individual liberty,” and specifically how the liberty to organize you life (and, presumably, the lives of one’s children and the lives that one and one’s co-religionists collectively articulate within their group) around “orthodoxy” becomes a kind of countervailing pressure upon the expansions of heterodox, individual life choices. In other words, this is all about pluralism, and how it is to be conceived in a free society. Paging Jacob T. Levy!

As a religious believer myself, I think that the wrinkle you identify here is perhaps deeper than you allow. Chesterton and Rod (we’re friends, so I feel comfortable calling him that) aren’t entirely engaging in a slight-of-hand move, because serious traditionalists (at least within the Christian tradition) really do reject the idea of autonomous selves. You have to begin with the either teleologically or divinely-ordered community, because that’s actually all there is; atomism, the individual really making choices on the basis of their own perception of themselves and the world around them, isn’t just unwise in terms of respecting the unstated moral or civic requirements of a free and just society, but actually impossible. And so, fundamentally, some orthodoxies are more “real,” they better reflect what Charles Taylor once called in an argument about Foucault the “bend” of reality. Obviously this brings up the place of Kennedy’s “mystery of human life” as you correctly note; it’s just that those who are pursuing the liberty-of-orthodoxy for themselves, their families, and their communities may well make the claim that they’re operating in what C.S. Lewis called “enemy-occupied territory,” having to make use of the language and legal structures of individual choice in order to carve a space for themselves in the midst of pluralism when they actually don’t see themselves as simply constructing a multicultural space at all: because their space is true.

This is why I suspect my friend Michael Austin caught something important when he wrote (in a Mormon context) that the argument about religious liberty is really, fundamentally, an argument about religious “comfort.” For a great many historical and cultural reasons, serious traditionalists like Rod could take comfort from the fact that, even though the truth that they knew God was calling them (and everyone) to had no privileged place, its basic presumptions–most especially dealing with sexual morality and marriage, which may seem like an odd focus, but then again really does genuinely impact upon the most intimate and individual level of choice–were nonetheless reflected in legal and social norms. So operating as a traditionalist group, teaching one’s kids, etc., in a secular society of choice was nonetheless “comfortable” (especially if you lived in Utah or Indiana or Arkansas). But now that level of comfort–and all the financial an educational privileges which traditionalists and their conservative sympathizers have been able to build into tax law and school curricula, etc., along the way–may really, finally, be taken away. For someone who sees this in light of the ongoing negotiation between individual and group/associational rights and choices (and as you rightly say, I think, from that perspective there “is pretty obviously no fix for this problem”), this is the sort of ongoing democratic argument which rights of exit and Child Protection Services and all the rest are part of. But for someone like Rod or Chesterton, it’s a wrong or false ideology finally completing its conquest; it is, as Damon Linker suggested, something which they (and deeply committed pluralists like him) see as the secularizing triumph of a new church or ideology, the church of “anti-discrimination.” Because, after all, what is a confessional and believing group, except a group which insists on being able to discriminate in regards to its own boundaries? Take away the legal right to respond to God’s mandate that believers self-identify, gather together in His name, and act accordingly, and what have you got left? French laïcité, I guess–and Rod’s proposal that now discomforted traditionalists get out, go Benedictine, and withdraw to form their own oppositional communities, with their own distinct economies and ways of life. It’s worked for the Amish and their parallel society for a couple of centuries; why not them?

19

David 04.09.15 at 12:45 pm

Um, yes, not being an American I wouldn’t dream of trying to explain their form of Liberalism to others. But since, for understandable reasons, these discussions often do spend a long time in the recesses of American politics, I wanted to get a pre-emptive strike in, in the nicest possible way, on behalf of the rest of the planet.
There are, as several people have already pointed out, different conceptions of liberalism, but perhaps the problem is that all of them, to a greater or lesser extent, rely on good sense and moderation, i.e. you all have to want to make the system work. This means all such systems are hostages to (1) those who don’t accept the system and (2) those who exploit the system unreasonably, often in the boundary areas of genuinely very difficult choices. Such behavior can create its own opposition. In France, for example, the increasing multiculturalism of the last generation has produced an inevitable backlash, and people are starting to say things like, “why should I be forced to sit next to someone whose attire offends me because it oppresses women?” And this is not a frivolous case, because the secular (and anti-clerical) movement in France has always been very strong and very principled, as we have discussed before, and there are many feminists who say that they are quite genuinely disgusted by what they see as displays of oppression.
Answers on a postcard.

20

The Modesto Kid 04.09.15 at 12:46 pm

“Alice Waters” s/b Alice Miller of course, how embarrassing.

21

Rich Puchalsky 04.09.15 at 12:48 pm

Russell Arben Fox: “It’s worked for the Amish and their parallel society for a couple of centuries; why not them?”

Because their Christian communities are addicted to majoritarian political power, and can’t really give it up. This is exactly why they feel that they have to control the meaning of e.g. marriage for everyone. Amish don’t go out into the wider culture and demand that everyone stop driving cars.

22

oldster 04.09.15 at 12:54 pm

I believe Alice Waters wrote that book about how every home environment is just as good as every other home environment for raising children–“Chez Pangloss”.

23

Russell Arben Fox 04.09.15 at 12:55 pm

Rich,

Because their Christian communities are addicted to majoritarian political power, and can’t really give it up.

Correct! (Though I wouldn’t put it that harshly.) I suspect this is the deep, discomforting reason why this whole process is so hysterical for so many otherwise entirely reasonable, apparently quite modern and small-l liberal folks: because for the orthodox, this isn’t just about their group of believers; this is about a group of believers that can, in the context of their understanding of scripture and tradition, comfortably and successfully shape the society around them to fit in the worldview they have been called to operate within and make choices in light of. If they truly and finally lose the ability to shape the landscape of choice generally, then they’re going to have to retreat in their involvement with marriage licenses or school books, or else rethink what orthodoxy involves.

24

Russell Arben Fox 04.09.15 at 12:56 pm

Messed up the italics there, sorry.

25

bianca steele 04.09.15 at 12:58 pm

@21

Rich’s point could be softened a little–at the expense of making the problem look more difficult–by saying that the Amish had been living as a persecuted minority among many tolerated minorities, and hoped to no longer be persecuted, while the situation of the Anglos was . . . too complicated for a comment box . . . in a way that makes issues look more theological than they probably ought to be (and sometimes affects the left too).

26

bianca steele 04.09.15 at 1:00 pm

crossed with @23, possibly while typing and deleting a sentence that contaimed the words “as I hope Russell Fox would agree”

27

Barry 04.09.15 at 1:12 pm

John, I think that you’re starting from a false premise, that Rod and most of the ‘religious right’ are actually about religious freedom. As we’ve seen, they are quite happy to stomp on the freedoms of any religious groups which they don’t like. And this has been going on for a long time; please note Scalia’s opinion in Smith, which could be summarized as ‘I don’t like your religious beliefs, so I will refuse to do my constitutional duty of judging the validity of laws’.

28

bianca steele 04.09.15 at 1:12 pm

@23

this is about a group of believers that can, in the context of their understanding of scripture and tradition, comfortably and successfully shape the society around them

Dreher’s piece is filled with examples, though, if extending “the society around them” to a ridiculous extent. His friend complains about other people’s (on the East Coast) understanding of “religion” being wrong. If he changed that to their understanding of their own religion being wrong because it was unlike his, it would be easy to see where the problem was. He takes a situation where the other guy disagrees and switches it to a situation where the other guy is stupid. And not surprisingly we ended up with a situation where real issues matter lest than the HORRIFYING fact that people have different opinions.

29

ZM 04.09.15 at 1:17 pm

Robespierre,

“I think they are breaking the (unjust) law to follow their conscience and draw attention to an injustice, and I think they are right to do so. I also think the State should apply its own laws as long as they stand, and punish violators.”

But then the question we have is how do we work out what is just and unjust? That was my original point about how it is just to be liberal about homosexuality, but unjust to be liberal about editing greenhouse gasses.

For my second example of religious protestors, David’s liberalism ends up having the religious protestors as orthodox enemies to the Australian Liberal government’s laws that mandate the detention of refugees. So French liberalism seems to agree with Australian Liberalism, but I still don’t know where American liberalism stands?

Russell Arben Fox,

“For someone who sees this in light of the ongoing negotiation between individual and group/associational rights and choices… this is the sort of ongoing democratic argument which rights of exit and Child Protection Services and all the rest are part of. “

There is an Iranian movie called The Apple directed by Samira Makhalbaf
which is about this. It is based on a true family and the real family members re-enact the events for the film. A religious family keep their little girls indoors until they are 11 years old, and then the Islamic State government child protection services finds out and rescues the girls and then they eat ice cream outside in the street for the first time.

https://youtu.be/O_38A9ZsduQ

“Take away the legal right to respond to God’s mandate that believers self-identify, gather together in His name, and act accordingly, and what have you got left? French laïcité, I guess”

Well in Jesus’ and the early Christians’ own time it was like that too. You need to convince everyone else, and also compromise like mixing Judaism with seasonal religions to get Christmas and Easter. Then everyone can get along.

“–and Rod’s proposal that now discomforted traditionalists get out, go Benedictine, and withdraw to form their own oppositional communities, with their own distinct economies and ways of life. It’s worked for the Amish and their parallel society for a couple of centuries; why not them?”

Well land was not so expensive when the Amish acquired large tracts of land, and also farm products sold at a better price. Your friends group could farm organically to benefit the environment and get higher prices. But the Amish are beset by problems at the moment since many of them like various elements of modern technology, and also there are too many Amish for the amount of land they have — so some Amish have to get jobs out in the wider community and then they can feel compromised having to use computers etc.

30

David 04.09.15 at 1:25 pm

Is there any such thing as a general attachment to religious freedom in principle by people who are themselves deeply religious? Superficially at least it seems a contradiction in terms, since surely you would prefer that everyone shared your religion. Isn’t it more an essentially liberal idea, a skeptical attitude that says that final truths are unknowable and that no faith has a monopoly of wisdom? But that’s a startlingly modern view – even half a century ago it would have been unacceptable to most believers in advanced western countries. But if you “know” your faith is true, what then? Demanding the freedom to practice it, whilst refusing that freedom to others, is actually quite logical.

31

bianca steele 04.09.15 at 1:26 pm

Oops, Dreher isn’t talking about Anglo pioneers and their descendants, is he? Since my point above relied on dissenting anti-authoritarianism and anti-hierarchy, it works less well, or would if I wrote it out. I really don’t understand the nature of the fundamentalist-Catholic rapprochement of the last decades.

32

name withheld by flying saucer 04.09.15 at 1:26 pm

Dreher asks, “Why can’t Republicans articulate this?”

The short answer is, “Because they will not celebrate Zen Buddhism, nor moderate Islam, nor psychedelic experience, nor MDMA cessation of soldiers’ PTSD.”

I think the argument breaks out beyond usual labels, because both sides have oppositions within them. There are 1. religionists who believe that theirs is the only true religion, and there are 2. religionists who believe that their religion is only one of many metaphors for spiritual change.

On the secular side, there are 3. secularists who think the idea of spiritual change is an hallucination, and there are 4. secularists who think that the change is real even if its provenance is misapprehended and that it may occur via different avenues.

So that’s FOUR orthodoxies whose liberty is to be defended! And thus we are still stuck in the early modern period. But I think the political theory of what’s orthodox, and what is not, may soon be transcended in all four cases.

To approach it from the other end: Dreher’s pseudonymous Professor Kingsfield has got it precisely wrong. Religious liberty is about to be reasserted and promoted, big-time. That is because traditional religious belief and scientific secularism are BOTH about to dissolve.

Let’s start from a fact which only some people, though it is an increasing number, have experienced. There is an event in meditation consciousness which is real: “ego death –> higher consciousness” is a real event. Most religionists and scientists have not experienced it, however, because it takes a lot of meditation. And without experiencing it, they do not quite understand it, because the only thing they can know is an intellectual framework, but it is not an intellectual framework.

Scientists are easier to dismiss from the conversation, so far. Scientists are unaware, or think that it is mere hallucination, so science has rarely tried to study it, and gotten it wrong.

Religionists are a more difficult bunch, because they think they know what they are talking about. They believe in various frameworks which are based upon it, but they still don’t understand it. Christians do not understand that the story of Christ is a metaphor for a real event in consciousness, that “belief” is a structural prerequisite for the personal self-sacrifice, and that most of their traditional teaching has actually led them away from personal knowledge of the real event. Islamists, Vedantists, you name it, all show similar misunderstandings based in their own intellectual frameworks, their theologies.

This is all about to start changing, and more rapidly than you may think.

What is going to change this? The combination of the things bracketed here: [MRI brain studies of meditation sessions in which the highest state of religious consciousness is self-reporte;, including psychedelic sessions, where after 6-8 sessions it is quite commonly reported, thus making it more tractable to experimental study] + [a comparative analysis of practical manuals in old religious mysticism].

This is going to lead to a very different, new orthodoxy, something along these lines: [a non-materialist metaphysics of incompleteness and the non-algorithmic parts of the mind] + [a cessation of the ideologies of self-interest in economics and of methodological individualism in the social science of the future].

Among other things, the coming era is going to accept homosexuality. People won’t worry about homosexuals, because the old religious injunctions came out of the requirement to stop sexual desire as one of the many desires which must cease for the self-sacrifice needed in meditation for ego-death before higher consciousness. In other words,this was never functionally about sexual orientation, it is always functionally about “lust” — but the old religions still needed to justify sex for propagation of the species, and so restricted it to heterosexual marriage.

The coming era will also have reduced occurrences of abortion. Abortion rates will fall to medically-necessary levels, largely because the gain in conscious control of impulses will reduce unwanted pregnancy and rape.

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JanieM 04.09.15 at 1:47 pm

David @30

I suppose it depends on what you mean by “deeply religious,” but there’s Roger Williams and the strand of American history that he exemplifies, starting a good bit longer ago than half a century.

There was a similar thought train a few weeks ago in a thread where (IIRC) the second amendment was being discussed. Some people seemed to have trouble imagining anyone with the broad-mindedness to want to give other people the freedom they claimed for themselves. (In this case it was the founders of the US of A.) Maybe it’s rare, but surely not unknown, even a long time ago.

34

Russell Arben Fox 04.09.15 at 1:53 pm

Bianca.

Dreher’s piece is filled with examples, though, if extending “the society around them” to a ridiculous extent.

I think “ridiculous” is on the harsh side, but your point holds. Look, if you are a believer in traditionalist Christian orthodoxy in 20th-century America, you actually really could operate in the wider society, quite successfully–climbing the corporate ladder, government appointments, academic publishing success, etc.–without being fundamentally compromised or discomforted in your desire to pass along your orthodoxy to your kids. The public schools were (mostly) on your side–yes, the school prayer and civil rights things were major issues for a few of these groups for a while, but they could be finessed–and the mass media didn’t especially offend you, etc. Lose that, and where do you find yourself?

ZM,

Well land was not so expensive when the Amish acquired large tracts of land, and also farm products sold at a better price. Your friends group could farm organically to benefit the environment and get higher prices. But the Amish are beset by problems at the moment since many of them like various elements of modern technology, and also there are too many Amish for the amount of land they have — so some Amish have to get jobs out in the wider community and then they can feel compromised having to use computers etc.

Excellent points. In a lot of ways, getting serious about operating as a parallel society within the context of a (mostly) tolerant secular runs depends on all sorts of socio-economic realities, land-use issues, etc. This is why you sometimes see this really odd–and I think, frankly, kind of cool–anti-globalist and agrarian attitude amongst a certain set of otherwise perfectly modern religious conservatives; completely aside from however they choose to interpret scripture, I suspect a lot of them kind of know, on some level, that if they really want to exercise the Benedictine option they’re going to have to carve out a farming-based social and economic space for themselves, and not just a legal one.

35

bianca steele 04.09.15 at 2:04 pm

Russell,

Really, five hundred years ago, a shopkeeper in a small market town wouldn’t consider it ridiculous to think he had the right to shape the society of people in very different situations, three thousand miles away? He might not think it was ridiculous to think all the good people of that other town thought the way he did, or to condemn, in casual conversation, those who didn’t. But to think every adult has the right and the need to feel they can shape the world, that seems to me to develop, frankly, out of liberalism. Though maybe more specifically out of existentialism.

I don’t think, with respect to the OP, that the real issue is whether people have the right to teach their kids what they want. It’s whether they have the right to teach their kids that when the kids grow up they’ll be entitled to take rights away from people who inconvenience them, because supposedly theirs isn’t mere inconvenience but is more special than other people’s inconvenience.

36

Watson Ladd 04.09.15 at 2:08 pm

David, Jews have never thought that everyone should be Jewish. Nor would a Roman demand that everyone sacrifice to the Roman gods: rather he would demand they honor whatever gods they had around, while he sacrifices to his.

I don’t see how group rights enter into this. Dreher isn’t arguing that we should enforce religious law upon those who are born into a particular religion. Rather he’s arguing that we all should have the right to associate with those who share our values, and avoid impositions on the values of others. He would argue you have the right to be gay, but not to be a gay Mormon: they can kick you out of their party, and thus preserve orthodoxy.

So does Hobo’s objection make sense? Can we have religious liberty without the right to form communities of those with similar beliefs?

37

jake the antisoshul soshulist 04.09.15 at 2:14 pm

This hits at a contradiction that I have thought about quite a bit. ie., religious conservatives constantly talking about liberty, when it appears to be obvious to me that they think no one should ever actually use any. And what is referred to in the OP as “orthodoxy”, I call authoritarian-conformism.

38

bianca steele 04.09.15 at 2:15 pm

Russell,

I did misread your comment regarding the timeframe involved. But I don’t know what Rod Dreher means when he says we should go back to a presumption that what he calls serious or believing Christians would succeed in the business world, the law, and so on. Does belief have public meaning for him or does it not? If it does, he’s being coy about which beliefs in particular the liberals are supposedly unfairly excluding from their campuses and so on.

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John Holbo 04.09.15 at 2:16 pm

Thanks for good comments. Having spent so much time writing the thing today I now have little time to respond.

Quickly: Rich, I haven’t read “The Nurture Hypothesis” but I’m aware of what it’s about. I wasn’t inferring that Dreher and Kingsfield must be interested in narrowing children’s exposure from the fact that they read the book, nor inferring that the book advocated narrowing children’s exposure from the fact that Dreher and Kingsfield seem to be advocating it. I mostly infer that they are advocating narrowing children’s exposure because I sense Dreher being worried he’ll be forced in the opposite direction. But, honestly, I could be wrong about that. He might just be objecting, in principle, to being forced to do something he would, in fact, voluntarily choose to do himself. My sense isn’t that he wants to lock his kids in a box with a Bible or anything truly extreme.

Thanks for thoughtful comments by others – holbonically long. I’m looking at you, Russell! I’ll try to respond tomorrow.

40

Joshua W. Burton 04.09.15 at 2:30 pm

Is there any such thing as a general attachment to religious freedom in principle by people who are themselves deeply religious? Superficially at least it seems a contradiction in terms, since surely you would prefer that everyone shared your religion.

Only if you follow a proselytizing religion.

This is a perfect minor example of the irreconcilable moral foundations problem, aka God Is Not One. One of the great triumphs of a liberal society is that it provides (or, at least, seeks to provide) a safe space for meta-debate on the nature of a liberal society. What orthodoxy loses by liberalism, orthodoxies gain.

41

Anderson 04.09.15 at 2:31 pm

(1) At least as regards the bakers & florists & photographers, I don’t think there’s any huge dilemma here. If your credo requires you to discriminate against certain customers, then you shouldn’t get in the public-accommodation business in the first place. Simple, no?

Whiny-ass “Christians” like Dreher (who, if there’s an afterlife, are going to be surprised where they end up) want to have their cake (shop) & eat it too.

Or, even easier: just don’t do weddings, period. “I need a wedding cake.” We don’t make wedding cakes, sorry. Oh wait! That would involve sacrificing profits for one’s own beliefs. Fake Christians like Dreher would never dream of that.

(2) I can’t see the word “orthodoxy” without thinking of the question posed by the notoriously dissolute Earl of Sandwich, which I relate for anyone lucky enough not to’ve heard it before:

“I have heard frequent use,” said the late Lord Sandwich, in a debate on the Test Laws, “of the words ‘orthodoxy’ and ‘heterodoxy,’ but I confess myself at a loss to know precisely what they mean.” “Orthodoxy, my Lord,” said Bishop Warburton, in a whisper, –“orthodoxy is my doxy, –heterodoxy is another man’s doxy.”

42

Consumatopia 04.09.15 at 2:53 pm

Because, after all, what is a confessional and believing group, except a group which insists on being able to discriminate in regards to its own boundaries? Take away the legal right to respond to God’s mandate that believers self-identify, gather together in His name, and act accordingly, and what have you got left?

Fortunately, those rights are almost totally secure for the foreseeable future. Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC upheld 9-0 the right of believers to discriminate arbitrarily with regard to their selection of ministers. It’s also difficult to imagine that churches wouldn’t have the right to discriminate in who they accept as members.

I understand why some believers may not think that goes far enough. It is easier to maintain a set of values when those values are upheld by your surrounding community–whether by law, by market forces, or by social norms.

But there is something of a contradiction in demanding that this be permitted on the basis of religious freedom. If someone’s religious view is dependent on the presence of public discrimination to uphold it, that logically implies that competing religious views are dependent on the absence of that discrimination to uphold their contrary views. As soon as believers start interacting with other kinds of believers, the religious freedom claims become zero-sum–any expansion in my religious freedom to discriminate is a loss in your religious freedom from discrimination.

This contradiction can be avoided if one makes the argument on purely individualist grounds–you have the right to trade and associate with whom you wish, etc.

43

TM 04.09.15 at 3:12 pm

It is a mystery to me how such a grotesque, reality-challenged and logically inconsistent hack piece (starting from the premise of an obviously invented law school professor who doesn’t dare speak up in favor of religious liberty) deserves any answer at all, and to the extent that an undeserved answer is thought to be in order, why that answer should be longer than a paragraph. I know you don’t like to hear this John but seriously why are you doing this?

ZM 5: The relevant question to ask would be what conservative self-styled defenders of religious liberty (for example, Indiana Republicans) would have to say about liberals breaking the law to defend refugees on religious/conscientious grounds. If you think you’ll find any takers, any right-wingers saying – yeah, that is exactly what people should have the right to do if they are compelled to by their religious convictions – you must be seriously deluded.

Dreher, in his abominable piece, mentions Sister Prejean and the link between her faith and her work against the death penalty but has nothing to say on the implications. I don’t find him arguing that principled opponents of the death penalty should have a right, say, to withhold paying taxes to a state that in their eyes commits grave injustice by executing people. So what does Sister Prejean’s religious liberty get her? As I said it’s a hack piece devoid of any logical coherence.

44

TM 04.09.15 at 3:13 pm

Moderation, huh?

45

TM 04.09.15 at 3:15 pm

ZM 5: The relevant question to ask would be what conservative self-styled defenders of religious liberty (for example, Indiana Republicans) would have to say about liberals breaking the law to defend refugees on religious/conscientious grounds. If you think you’ll find any takers, any right-wingers saying – yeah, that is exactly what people should have the right to do if they are compelled to by their religious convictions – you must be seriously deluded.

Dreher, in his abominable piece, mentions Sister Pre-jean and the link between her faith and her work against the death penalty but has nothing to say on the implications. I don’t find him arguing that principled opponents of the death penalty should have a right, say, to withhold paying taxes to a state that in their eyes commits grave injustice by executing people. So what does Sister Pre-jean’s religious liberty get her? It’s a grotesque hack piece devoid of any logical coherence.

46

TM 04.09.15 at 3:15 pm

It is a mystery to me how such a grotesque, reality-challenged and logically inconsistent hack piece (starting from the premise of an obviously invented law school professor who doesn’t dare speak up in favor of religious liberty) deserves any answer at all, and to the extent that an undeserved answer is thought to be in order, why that answer should be longer than a paragraph. I know you don’t like to hear this John but seriously why are you doing this?

ZM 5: The relevant question to ask would be what conservative self-styled defenders of religious liberty (for example, Indiana Republicans) would have to say about liberals breaking the law to defend refugees on religious/conscientious grounds. If you think you’ll find any takers, any right-wingers saying – yeah, that is exactly what people should have the right to do if they are compelled to by their religious convictions – you must be seriously deluded.

47

TM 04.09.15 at 3:18 pm

Dreher, in his abominable piece, mentions Sister Prejean and the link between her faith and her work against the death penalty but has nothing to say on the implications. I don’t find him arguing that principled opponents of the death penalty should have a right, say, to withhold paying taxes to a state that in their eyes commits grave injustice by executing people. So what does Sister Prejean’s religious liberty get her? As I said it’s a hack piece devoid of any logical coherence.

[Ok I give up. There must be a magic word in that paragraph but no idea what it could be.]

48

Barry 04.09.15 at 3:24 pm

Watson Ladd 04.09.15 at 2:08 pm

“David, Jews have never thought that everyone should be Jewish. Nor would a Roman demand that everyone sacrifice to the Roman gods: rather he would demand they honor whatever gods they had around, while he sacrifices to his.”

And a good thing it was. Could you imagine if (just as an impossible hypothetical) some Roman authorities messed with the Jew’s religion in Israel?

Why, there could be hubbub! A kerfuffle?

(of course, not a war – that’s crazy talk!).

49

js. 04.09.15 at 3:33 pm

Good stuff, Holbo.

50

Joshua W. Burton 04.09.15 at 3:39 pm

As soon as believers start interacting with other kinds of believers, the religious freedom claims become zero-sum–any expansion in my religious freedom to discriminate is a loss in your religious freedom from discrimination.

This. The obvious analogy with monopolies and competitive markets in the mundane sphere is somewhat instructive: a monopoly is both much more likely to abuse, and (because of regulatory capture) much harder to check when abusive, than any one competitor among many. Surely Americans, at least, have noticed that our heaven-sent blessings of liberty fall unevenly with a predictable distribution.

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David 04.09.15 at 3:47 pm

@Watson Ladd. Fair point, I said “monotheist” when I should have said “Christian and Islam”, although I know there is an argument that Jews were actively proselytizing early on. But your mention of Rome is spot on – it’s the point I was making! We are dealing with different conceptions of what religion is. The Romans, like the Greeks, like nature religions which still hang on in places like Japan and Korea, considered that there are lots of gods, and that you can always add a few more without problems. Even today in Japan you go and make an offering to the god of a particular shrine, but there may well be another shrine, with a different god, only a few kilometers away.Christianity got into trouble with Rome not for worshiping its god, but for refusing to worship the others.
I confess I don’t know much about the episode that sparked the OP, or the individuals concerned, but I do think there is a real point here, which is how far a liberal society can accommodate those who believe (or at least maintain) that their faith requires them not only to act differently, but to enforce that different way of behavior on their particular group. It seems clear that the European Court of Human Rights, for example, is moving slowly in the direction of accepting that groups have the right to enforce their own rules on religious grounds even if this contradicts the law or constitution of a European country.

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Vasilis Vassalos 04.09.15 at 3:56 pm

I had started out thinking that you wanted to clarify and discuss the issues, from an academic philosophy point of view. But then you throw bits in like this

“The issue here is structurally similar to the NEA ‘piss christ’ and Robert Maplethorpe controversies of yore. Should ordinary citizens, scandalized by this stuff, be forced to pay for it via taxes (or even just tax exemptions for organizations than sponsor it)?”

It’s really not structurally equivalent. There is nothing structurally equivalent about an objection to funding of art that is aesthetically displeasing to you and an objection to funding for an organization that teaches that you (as, for example, a gay person) are despicable and your way of life should be outlawed (or even worse, that teaches that you should die).

There are more bits like this, where you seem to try to draw parallels to stuff liberals claim or support, as if to say “I am taking on this side now, but the other side has just as many wrong-headed folks”.

Do the religious liberty folks want to extend the rights they seek to Wiggans, satanists, and of course Muslims? Does anyone want to make a bet as to whether Dreher and Kingsfield were supportive of the Muslim community center in downtown NY a year or so ago? Why do you insist on taking them at face value and making complex philosophical arguments about their positions when there is a lot of evidence they’re simply reactionaries that want to preserve existing social hierarchies, as Corey Robin has discussed at length?

I understand the need to find intellectual opponents among the Right, but please explain, if you feel so inclined, how this is different from the effort of various serious pundits to find a serious Republican on macro-economic matters, and anointing whoever can spell his name as a serious thinker (e.g. Paul Ryan) regardless of their actually unserious or regressive positions.

Also, this:

“It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad.”

It’s legal, but from a philosophical standpoint “all very well”? According to which theory? BTW, even if you don’t believe it. it’s still legal.

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Maynard Handley 04.09.15 at 3:57 pm

David @3 has the point precisely correct.
The Liberal viewpoint (which I strongly support) REQUIRES that one act as though one’s religion has no real impact on the outside world. But this is not how religion is traditionally felt and believed.

The traditional view of religion, from animism down to Friday Night Football, is that there’s some uberKing up there who looks at how we are behaving and, based on that, rewards or punishes the community, whether it’s flood, fire and brimstone, earthquakes in Lisbon or hurricanes in New Orleans. If you actually believe this worldview, then it is incumbent upon you to protect your community by punishing those who would disrespect this uberKing, whether through gayness, abortion, or printing pictures of Mohammed. This is simply INHERENT IN THIS VIEW OF HOW THE UNIVERSE WORKS.

To “respect religious thinking” is to respect this view of the world.
The US’ version of this part of the first amendment came out of the power of the state, damn right. The state stepped up and said “we’ve SEEN the consequence of treating your beliefs as though they were real over the past few hundred years, and that ends today” To roll this back (which is part of what fully “respecting religious thinking” means) takes us back to the 30 years war, only with nuclear weapons. The MOMENT you allow arguments based on “I really really care about telling other people what to do, not for these secular reasons, but because God tells me”, you’re in the world of destroying civilization (literally!) because that’s what it takes to get into heaven.

All the kumbaya in the world isn’t going to change this. Live by the magical thinking and you will die by the magical thinking.

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Bruce Baugh 04.09.15 at 4:16 pm

I want to hoist a small flag here about terminology. The Disciples of Christ, the Friends General Conference, and other groups of Christians who see their duty to God including a very different sort of legal and social order aren’t heterodox. It is not more authentically Christian to feel Dreher’s kind of hate and fear than the kind of generosity and willingness to coexist shown by Heath Rada, Moderator of the Presbyterian Church (US).

I have no particular reason to doubt Dreher’s sincerely felt passions. But I also see no reason to grant him any authority when it comes to establishing how Christian his vision is and how un-Christian alternative experiences are.

55

Anderson 04.09.15 at 4:21 pm

I know you don’t like to hear this John but seriously why are you doing this?

Good folks such as Holbo badly want there to be ideologically-opposed interlocutors of intelligence and good faith, and for some reason, the despicable hack Dreher is one of the people that the good folks project that desire upon.

56

bianca steele 04.09.15 at 4:30 pm

Once upon a time, everyone (at least everyone who was everyone) assumed that all responsible people belonged to a major religious sect (who this included might change, Jews or not, Muslims or not?, at what point in the evolution of Christendom to stop allowing new entrants?). (If this is the case, being able to exclude people becomes a problem, incidentally.) This sounds nice and all kumbayaa. Once upon a time, everybody recognized that this common religion was basically an Enlightenment, liberal vision of a minimal shared core morality. But taken in the abstract, it could mean anything. It could mean that all “real” religions keep women down in a certain way. It could mean that all “real” religions exclude some specified group (Jews, gays, non-whites, etc.). It could mean that every religion must exclude somebody, whomever you will, and everybody who’s not discriminated against must be allowed to participate in exclusion. So it’s not enough of a distinction to say “minimally shared core morality,” though it seems like it should be.

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Bloix 04.09.15 at 4:46 pm

#35 – “Nor would a Roman demand that everyone sacrifice to the Roman gods: rather he would demand they honor whatever gods they had around, while he sacrifices to his.”

As any Christian will tell you, this is not correct. The Romans were happy to put Christians to death for refusing to honor Roman gods. They did it for entertainment.

The Romans had a habit of making the emperor a god and demanded that subject peoples honor him as one, as a declaration of loyalty to the State. This got to be strictly compulsory in 249, when the emperor Decius made an edict that everyone must sacrifice to the Roman gods and to the emperor in the presence of a magistrate.

That was easy for polytheists; they treated the Roman gods as analogues of their own gods, and made the emperor a manifestation on earth of one of them. (“We all worship the same gods each in our own way.”)

The Jews wouldn’t do it; but the Jews had a special dispensation from the time of Julius Ceasar as a religio licita (a permitted religion). The Jews were an old people and their religion was that of their ancestors, and the Romans respected people who venerated their ancestors, and also the Jews didn’t proselytize. So usually but not always the Jews were left alone.

Christians were different. They didn’t venerate their ancestors – they rejected their ancestors. And they were upstarts who wanted everyone to refuse to honor Roman gods. The Romans had no problem putting them to death.

There are lots of gruesome tales of Christians and lions in the Coliseum in the stories of the early Christian martyrs.

58

Anderson 04.09.15 at 4:51 pm

Bloix @ 52 is of course correct. See e.g. Pliny’s letter to Trajan, seeking advice during Pliny’s term as a provincial governor:

An anonymous document was published containing the names of many persons. Those who denied that they were or had been Christians, when they invoked the gods in words dictated by me, offered prayer with incense and wine to your image, which I had ordered to be brought for this purpose together with statues of the gods, and moreover cursed Christ–none of which those who are really Christians, it is said, can be forced to do–these I thought should be discharged. Others named by the informer declared that they were Christians, but then denied it, asserting that they had been but had ceased to be, some three years before, others many years, some as much as twenty-five years. They all worshipped your image and the statues of the gods, and cursed Christ.

59

The Modesto Kid 04.09.15 at 4:52 pm

60

parse 04.09.15 at 4:53 pm

Yet this is problematic. Dreher would, I think, have to agree with what I’ll call the Abraham Principle. If someone is a credible threat to the health and safety of his child – even if he believes God commands it! – Child Protective Services should step in. There’s no other way to run the railroad. Dreher worries the state will seriously abuse its privilege of defining ‘serious abuse’, but he wouldn’t deny that this privilege is also an obligation.

But once this camel’s nose is in the tent, aren’t all debates about the principle of the matter over? Clearly, according to the Bible, Abraham was right to sacrifice Isaac, up until the moment the angel told him to stop. If Dreher and others aren’t willing to support their definition of acceptance of orthodoxy as the truly liberal model for behavior, if they don’t support faith healers denying life-saving medical treatment to their children, then they’ve already conceded that the rights of the orthodox have limits, and we’re only left with cases where the facts of the matter, rather than the underlying principle, is in doubt.

61

TM 04.09.15 at 4:54 pm

54: “Why do you insist on taking them at face value and making complex philosophical arguments about their positions when there is a lot of evidence they’re simply reactionaries that want to preserve existing social hierarchies, as Corey Robin has discussed at length?”

Pretending that reactionary ideology is anything other than reactionary ideology is objectively reactionary. Take that Holbo!

62

Bruce Baugh 04.09.15 at 5:13 pm

I don’t see that Dreher would agree with the Abraham Principle. I don’t give him a lot of attention, but he certainly seems to be working himself in the direction of allowing nothing at all to interfere with passionately felt religious conviction as long as he approves of it.

63

marcel 04.09.15 at 5:31 pm

Bloix wrote that also the Jews didn’t proselytize.

I am not sure that this is correct. It certainly was widely believed at one point, but it is my understanding now that (many historians of the classical era believe that) at least some Jews did proselytize until Christianity became the state religion. Certainly conversions happened, sometimes en masse: e.g., the Nabataeans (Herod’s ethnic ancestry) converted (though apparently not voluntarily).

64

Anderson 04.09.15 at 6:15 pm

58: I think the Maccabees were an exception to the rule, but that is a good point.

65

MPAVictoria 04.09.15 at 6:19 pm

The Modesto Kid’s link @54 truly is a thing of beauty. I love Roy’s writing.

66

Sebastian H 04.09.15 at 6:20 pm

As usual this is about balancing. The problem being that both sides want to cram stuff down the other side’s throat.

This comes down to accommodations. It is interesting that John quotes the ‘common carrier’ idea but doesn’t seem to have any idea what it is. It turns out that the common carrier idea is actually great for balancing religious freedom against community need. For those things where the government provides monopoly or semi-monopoly regulation (taxis and trains in the most classic examples), they have to be open to all people willing to pay. For certain other things considered crucial to life (emergency rooms, hotels for shelter, restaurants for food) they also have to be generally open. For other things, religious people can do things in line with their religion that might inconvenience you–like forcing you to find another person to decorate your wedding.

Really that doesn’t seem so ridiculous to me. And I’m gay, and frankly happy not to have a fundie crazy like my father arrange flowers at my wedding. And if he wants to tell me that he wouldn’t do it, I see know reason why that should be illegal.

Now I fully understand that figuring out which ones are ok and which ones aren’t is a project, but the one you seem to want to default to [religious people should eat it] doesn’t seem any more ‘multicultural’ than [non-religious people should eat it].

(Slight aside–‘the religious people can have beliefs in their own mind but shouldn’t be allowed to use them in the political sphere’ concept talked about in the first few comments is a bad principle. Religious people get to use moral principles in their politics just like you do. The grounds for their moral principles are mysterious, just like yours.)

67

Paul Davis 04.09.15 at 6:21 pm

This is hardly the correct thread, but there have been a couple of remarks that have touched on this already …. so … there’s this protestant-culture-raised but aethiestic brit, a hindu (who insists that hindu isn’t actually a useful term in india) and a secular son of iraqi jews, all driving together down the side of the dead sea, wondering what the difference is between the Abrahamic religions and all the rest of the worlds religious traditions.

It doesn’t even require the full length of the dead sea to recognize the key point: all of the Abrahamic religions place a personal relationship with a personal god at their very core. And because in their conception, such a relationship is possible, it is also therefore, necessary. This distinguishes them from more or less all other religious traditions, which either do not consider the relationship with god to be a personal one, or do not conceive of a god that is personal, or both.

The necessity of this relationship then leads to, in general, the need among many (almost all) believers to have a very clear conception of what “god” is like. If your god is not like my god, then clearly, you do not have a (correct) relationship with the correct god. And thus … contemporary fundamentalism across all 3 branches of the Abrahamic faiths, and a fundamentally different conception of what belief/religion is and how it needs to intersect with the secular world.

68

MPAVictoria 04.09.15 at 6:21 pm

“but he certainly seems to be working himself in the direction of allowing nothing at all to interfere with passionately felt religious conviction as long as he approves of it.”

Bingo. Dreher has long been a proud member of the “freedom for me but not for thee” party.

69

Bloix 04.09.15 at 6:22 pm

I didn’t mean to derail the thread. My point in my usual overly circuitous and pedantic way was that historically religion was considered a matter of state and that the idea of leaving it to personal conscience is a modern one with rare exceptions.

70

MPAVictoria 04.09.15 at 6:28 pm

“My point in my usual overly circuitous and pedantic way was that historically religion was considered a matter of state and that the idea of leaving it to personal conscience is a modern one with rare exceptions.”

True! But don’t most citizens in Western Democracies now agree that was a bad thing?

71

js. 04.09.15 at 6:34 pm

the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life

That is a horrible line. I would have thought a US Supreme Court justice could keep a simple concept/object distinction straight, but apparently not. (This is something he wrote and then read, presumably, not something he said extemporaneously?)

I know this is OT, it’s just so bad it’s been bothering me for hours.

72

gianni 04.09.15 at 6:35 pm

bianca steele : “I really don’t understand the nature of the fundamentalist-Catholic rapprochement of the last decades.”

Me neither.
I imagine that here in the states it has something to do with the broader assimilation process of the Polish, Irish, and the Italians – who iirc all had a major wave into the US around the same time after the Civil War but before WWI laying the groundwork for this sort of thing. No idea how the process was initiated tho.

73

Anderson 04.09.15 at 6:50 pm

“I would have thought a US Supreme Court justice could keep a simple concept/object distinction straight, but apparently not.”

That’s Kennedy for you.

74

Rich Puchalsky 04.09.15 at 6:51 pm

“Good folks such as Holbo badly want there to be ideologically-opposed interlocutors of intelligence and good faith, and for some reason, the despicable hack Dreher is one of the people that the good folks project that desire upon.”

I say things like this for the last 20 John Holbo threads, and everyone says that I shouldn’t tell a poster what to post. And on the first thread where I don’t say it everyone else says it. Mission Accomplished!

Needless to say, the number of people who actually go Benedictine is going to be similar to the number who actually go Galt. Functionally, they are very similar — they are imagined retreats for a dominant class that is perceived to be losing its dominance. But since this is a relative loss of dominance rather than an absolute one, no one is really going to be motivated to follow through.

75

MPAVictoria 04.09.15 at 6:54 pm

“Needless to say, the number of people who actually go Benedictine is going to be similar to the number who actually go Galt. Functionally, they are very similar — they are imagined retreats for a dominant class that is perceived to be losing its dominance. But since this is a relative loss of dominance rather than an absolute one, no one is really going to be motivated to follow through.”

Really great Rich. Well said.

76

mattski 04.09.15 at 7:07 pm

I say things like this for the last 20 John Holbo threads, and everyone says that I shouldn’t tell a poster what to post.

You just don’t realize what a pit bull you are, Rich. But you’re getting sweeter all the time.

:^)

77

Russell Arben Fox 04.09.15 at 7:07 pm

Needless to say, the number of people who actually go Benedictine is going to be similar to the number who actually go Galt. Functionally, they are very similar — they are imagined retreats for a dominant class that is perceived to be losing its dominance. But since this is a relative loss of dominance rather than an absolute one, no one is really going to be motivated to follow through.

I mostly but don’t entirely agree with you, Rich (though I note that you give yourself some wiggle room by saying “similar to the number”). Yes, I really do think that on a certain level is story is mostly about the discomforting loss of relative dominance in a few key areas of our language and our law. Since the First Amendment still stands, and actual persecution of belief is nowhere on the horizon–unless, of course, as has been discussed, you associate “persecution” with the circumscribing of one’s group’s ability to define the area of choices in society–this isn’t an absolute loss of all rights, and most religious believers are going to be able to handle that discomfort. But a lot can be tucked away in what some might label “relative.” Bringing up your kids in a social word where one’s religious teachings about the disorderedness of homosexuality finds no real purchase whatsoever in marriage laws, depictions in the mass media, the distribution of benefits and jobs, etc., is going to strike certain Christian traditionalists, because of how they understand the divinely-created natural world to have been shaped, as a little bit more significant a loss that something merely “relative.” Do I expect a massive retreat by all conservative Christians from the public schools, government jobs, the marketplace in general? Nope. But do I expect that the next few years will see an acceleration of trends (towards home schooling, towards enclosed Christian cultural environments, etc.) that we’ve already seen develop significantly over the past couple of decades? I definitely do. (Parallel to the civil rights movement; when I move to Mississippi in 2001, my wife and I were almost shocked to realize how the private school system developed for whites taking their kids out of now desegregated public schools was still going strong and growing, more than a generation on.)

78

Anderson 04.09.15 at 7:08 pm

“I say things like this for the last 20 John Holbo threads, and everyone says that I shouldn’t tell a poster what to post. And on the first thread where I don’t say it everyone else says it.”

It’s my suave aftershave, Rich. I’ll send you a bottle.

(But really, I’m not telling Holbo what to post or whom to respect. I’m just finding it a bit risible, like when Kevin Drum goes “hey, Megan McArdle said something interesting ….”)

79

Bruce Wilder 04.09.15 at 7:12 pm

Dreher:

Kingsfield says he has gay colleagues in the university, people who are in their sixties and seventies now, who came of age in a time where a strong sense of individual liberty protected them. They still retain a devotion to liberty, seeing how much it matters to despised minorities.

“That generation is superseded by Social Justice Warriors in their thirties who don’t believe that they should respect anybody who doesn’t respect them,” Kingsfield said. “Those people are going to be in power before long, and we may not be protected.”

I had to wade thru the whole long line of Dreher drivel to get to the money shot: the horror animating Dreher’s avatar, “Kingsfield”. And, what is that horror? People, “who don’t believe that they should respect anybody who doesn’t respect them”.

If respect for Christians holding gays in contempt is no longer required, what is the world coming to?

I particularly love that “Kingsfield’s” nostalgia for an earlier, better time encompasses an era, when “a strong sense of individual liberty protected” gays and other “despised minorities”. For some unspecified value of “protected”. Because respect for those exercising their liberty to despise minorities . . .

Holbo’s OP let me think that I might find an actual and interesting argument. Holbo did not identify such an argument, but his search made me hope. And, I go and read it, and all I find is dementia building on dementia. It’s dementia all the way down, apparently.

80

Matt 04.09.15 at 7:29 pm

He had me at Social Justice Warriors.

I think it was less than a year ago that I first encountered that term and now it seems to be everywhere in the reactionary-o-sphere. Am I just noticing it more? Or did they all hold a meeting some time in 2014 and endorse a resolution that wastes of skin would switch from feminazis to SJWs when they’re signaling “ignore me”?

81

Barry 04.09.15 at 7:34 pm

Russell Arben Fox: “… civil rights things were major issues for a few of these groups for a while, but they could be finessed…”

Actually, the right was adamant that civil rights infringed on their freedom of religion. The right also didn’t (and doesn’t) have a problem with government-backed prayer, so long as the official priests are from their sects. When they’re not, all h*ll breaks loose, and the right considers it a violation of their religious freedom.

82

MPAVictoria 04.09.15 at 7:34 pm

“Or did they all hold a meeting some time in 2014 and endorse a resolution that wastes of skin would switch from feminazis to SJWs when they’re signaling “ignore me”?”

Definitely this. My interactions with reactionaries online has lead me to believe that SJWs are anyone who cares about anything.

83

Barry 04.09.15 at 7:35 pm

Vasilis: “Do the religious liberty folks want to extend the rights they seek to Wiggans, satanists, and of course Muslims? Does anyone want to make a bet as to whether Dreher and Kingsfield were supportive of the Muslim community center in downtown NY a year or so ago?”

This. The examples of what the right really believes about religious freedom happen almost daily.

84

Gene Callahan 04.09.15 at 7:40 pm

It is interesting to see the contempt in which “liberals” hold anyone who disagrees with them.

85

MPAVictoria 04.09.15 at 7:42 pm

“It is interesting to see the contempt in which “liberals” hold anyone who disagrees with them.”

Says the assholes who won’t SELL a gay couple a cake. Projection all the way down with you guys isn’t it?

86

geo 04.09.15 at 7:44 pm

Mainstream Christians believe in an omnipotent, omniscient, infinitely loving God, whose Providence rules all things and without whose notice not a sparrow falls to the ground. Why would anyone who believed this be so damn exercised about stamping out sin and heterodoxy? Why not pray harder and persecute less? Methinks Dreher — like Neuhaus, and John Paul II — protests far too much and trusts God far too little. Do they really believe — or even understand — their own theology?

When I was in a Catholic religious order, we were told, when assigned to proselytize: “Pray as if everything depends on God; act as if everything depends on you.” This slogan was very effective at first in getting me to act. But then I reflected that there’s no “as if” about it — everything does depend on God. If he was infinitely powerful, knowing, and loving, then what need of my actions or even my prayers?

I still don’t get it. How is it possible, logically or psychologically, to trust at once so much and so little in God? I can only endorse Anderson’s comment above that, if there’s an afterlife, Dreher (and Neuhaus and John Paul II) are going to be very unpleasantly surprised.

87

Walt 04.09.15 at 7:46 pm

Gene, only for those worthy of it.

I think SJW caught on just because from the conservative point of view it’s just such a convenient phrase. “Liberal” is a big, fuzzy group, and “SJW” conveniently picks out the more activist element within it.

It’s also a useful phrase from my point of view, because generally whenever somebody uses it unironically I know I can probably ignore the rest of their comment.

88

MPAVictoria 04.09.15 at 7:46 pm

” I can only endorse Anderson’s comment above that, if there’s an afterlife, Dreher (and Neuhaus and John Paul II)”

Frankly any afterlife that involves hanging around with those 3 killjoys for eternity sounds too awful to contemplate…

89

Rich Puchalsky 04.09.15 at 7:52 pm

There’s an alternate way of thinking about this if you don’t want to get bogged down in Dreher’s questionable particulars. Let’s say you’re a left anarchist, and you go out and suggest anarchy in the U.S. What are the top three social control provisions of the state that generally left-leaning people will be concerned with?

You’d think that #1 would be the military, as in “Wouldn’t another society that had a state just conquer us militarily?” But no one in the U.S. really believes that we could be at the losing end of a war on our soil. (Right wingers pretend to believe this, but only so they can shout “Wolverines”). #1 is about violent crime, “what would we do without the police”, to which various answers can be given. #2 is “what would keep rich people from taking over and running everything”, an objection that loses force when the questioner realizes that the actually existing government helps rich people take over and run everything. #3 is the interesting one for this thread, and it’s exactly about the gay kid being raised by the fundamentalist. Who is going to step in and rescue this kid if not the state?

Left anarchisms in which everyone is assumed to think in the same way have long since gone out of style. So, yes, there is a sense in which some people on the left have to accept, as a matter of principle, that there are going to be some communities in which people have values that really do differ from theirs, and that coexistence has to be possible. Since left anarchists are a tiny minority, it then becomes possible to see the overarching demand for communal standards to be enforced by the state as a demand without this being merely a cover for American mass politics as usual.

90

Anderson 04.09.15 at 7:53 pm

Dorothy Parker, “Partial Comfort”:

Whose love is given over-well
Shall look on Helen’s face in hell,
Whilst they whose love is thin and wise
May view John Knox in paradise.

91

Anderson 04.09.15 at 7:54 pm

“But no one in the U.S. really believes that we could be at the losing end of a war on our soil.”

Pre-nukes, you might have been right about that.

92

Matt 04.09.15 at 7:59 pm

“But no one in the U.S. really believes that we could be at the losing end of a war on our soil.”

Pre-nukes, you might have been right about that.

Touché. Post-nukes, all ends of a war can be losing ends.

93

Rich Puchalsky 04.09.15 at 8:03 pm

I’m talking about what people believe, not whether what people believe is true, since that would obviously derail the thread. I probably shouldn’t have even written the lead-in that I did.

94

Russell Arben Fox 04.09.15 at 8:20 pm

George,

Mainstream Christians believe in an omnipotent, omniscient, infinitely loving God, whose Providence rules all things and without whose notice not a sparrow falls to the ground. Why would anyone who believed this be so damn exercised about stamping out sin and heterodoxy? Why not pray harder and persecute less? Methinks Dreher — like Neuhaus, and John Paul II — protests far too much and trusts God far too little. Do they really believe — or even understand — their own theology?

Well said. This is the question which Christians like myself, and many others (some of whom have shown up on this thread), regularly ask to Dreher, etc.: is it really so difficult to grasp that one’s understanding of the Teleological Verities of Existence are, ultimately, just the latest good-faith, all-too-human effort to grasp The Whole Big Story? Ross Douthat did this “interview” with himself to attempt to present to conservative-and-worried-about-threats-to-religious-liberty position; when he honestly acknowledged that there are many millions of committed, even pious, Christians and readers of the Bible who think that argument about keeping oneself separate from the gay taint just doesn’t wash, he responded by stating simply that, well yeah, but “I just think their views ultimately point in a post-biblical, post-Christian direction.” For the life of me, I don’t quite see how someone who thinks (as I do, and as I presume he does too) that Jesus changed everything can imagine that social norms and legal rules about respect and association could move anything into a “post-Christian” state. I mean, honestly, I actually kind of like the idea of a robust civic religion, but I don’t for a moment think God needs the National Day of Prayer. He sure doesn’t need this thing called marriage to be reserved for straights alone either. (I should note, for honesty’s sake, that I used to believe as he does, and I still respect that arguments he and others like him use. But they don’t persuade me anymore.)

95

Bruce Wilder 04.09.15 at 8:27 pm

geo @ 81: Do they really believe — or even understand — their own theology?

No.

geo @ 81: How is it possible, logically or psychologically, to trust at once so much and so little in God?

It isn’t. (See my answer to your first question for an elaboration on this theme.)

96

MPAVictoria 04.09.15 at 8:30 pm

I believe this is a connected phenomenon:

http://www.nytimes.com/2015/04/10/us/aboard-flights-conflicts-over-seat-assignments-and-religion.html?_r=0

How much should the rest of us accommodate their bigoted/sexist/homophobic believes just because they claim they are religious in origin? My default position is not at all. You don’t want to sit next to a woman on a flight? Buy two tickets or stay home. You don’t want to make a cake for a gay wedding? Don’t become a baker.

97

Bloix 04.09.15 at 8:54 pm

BTW, Anderson’s link at #53 is an example of what tolerance means – both Pliny and Trajan are marvelously tolerant – when there is no division between religion and loyalty to the state:

“They are not to be sought out; if they are denounced and proved guilty, they are to be punished, with this reservation, that whoever denies that he is a Christian and really proves it–that is, by worshiping our gods–even though he was under suspicion in the past, shall obtain pardon through repentance. But anonymously posted accusations ought to have no place in any prosecution. For this is both a dangerous kind of precedent and out of keeping with the spirit of our age.”

98

Trader Joe 04.09.15 at 9:13 pm

@81 geo
“How is it possible, logically or psychologically, to trust at once so much and so little in God? “

No doubt somewhere in your religious education you’ve run across these two thoughts 1) Do not put your lord God to the test and 2) God has given you the light and it is through that gift that it is spread.

Somewhere in those two phrases is how one can simultaneously trust in God and also take responsibility for putting his words into action.

I don’t doubt that much evil has been practiced in reliance on these ideas – but I also don’t doubt that much good has as well – tis why its called faith.

P.S. not really interested in a broader debate on this bit of chatecism, geo asked what I viewed as a quite legitimate question and I felt obliged to supply the bits of “orthodoxy” which I’m sure he is familliar with but perhaps failed to recall.

99

Barry 04.09.15 at 9:14 pm

Gene Callahan 04.09.15 at 7:40 pm

“It is interesting to see the contempt in which “liberals” hold anyone who disagrees with them.”

I find it far more interesting when alleged intellectuals drop into a conversation, obviously having understood nothing.

100

Jay C 04.09.15 at 10:17 pm

Excellent post and comments, as usual at CT, but I think Mr. Holbo may be overthinking things a bit when it comes to analyzing Rod Dreher’s ponderous whingings about “religious liberty”. I read his “Prof. Kingsfield” piece all the way through, and the main takeaway I got was an all-pervasive sense of self-pity, purse-mouthed moralism, and (literally) holier-than-thou self-martyrdom; based on some perceived (and mainly imaginary, IMO) attack on “orthodoxy” by Sinister Forces in the greater society . Which “orthodoxy” Dreher seems to define almost exclusively in terms of its parameters of discrimination, and “liberty” the extent to which that discrimination is legally sheltered. Despite the chronic use of religious tropes to bolster his case, Dreher’s overwrought articles (and the “Kingsfield” one was actually, I thought the best-reasoned of them) all seem to boil down to “Waaaah! Mean bigoted liberals (who are the REAL Fascists) won’t let me discriminate in public, even though God says to! Waaaah!!” Despite the clerical garb, they read to me way more as political arguments than religious or cultural ones: and political arguments from a basically authoritarian/conformist mindset at that.

101

Layman 04.09.15 at 10:24 pm

I made the mistake of clicking through the links, all the way to Douthat’s 7 questions, and I’m frankly astonished that anyone thinks they’re particularly pointed or thoughtful. I thought they were in the main sophomoric, often begging the question.

102

TM 04.09.15 at 10:27 pm

103

Consumatopia 04.10.15 at 12:26 am

For other things, religious people can do things in line with their religion that might inconvenience you–like forcing you to find another person to decorate your wedding.

How about other inconveniences? I mean, it might be inconvenient that my religion, that I invented just now, requires me to cross your land, but it’s not like I’m trying to go inside your house or anything–that would be dangerous, but crossing your lawn is merely inconveniencing you.

Most property owners would stammer that it isn’t the inconvenient damage I’m doing to their lawn that’s the problem here, it’s the violation of principle. And they would be correct, but they would still only be seeing half the problem. The other half is that the government has granted me a special privilege, as a believer, of ignoring laws that non-believers must obey.

I could live with a regime that allowed occupations that are sufficiently “expressive” to refuse work on free speech grounds. The problem isn’t so much that these new laws are trying to enable florists and photographers to discriminate. The problem I have is that these laws would require the state to discriminate, by granting special privileges to believers.

104

Rich Puchalsky 04.10.15 at 12:39 am

I’ll return to the OP:

“But here’s the short version of where this is going. It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad. But once you yourself don’t believe that – because, honestly, everyone knows better today – would it be ethical to raise a (perhaps) gay child while intentionally concealing from them the possibility of living like (oh, say) one of the nice, happy gay people I’m reasonably sure Rod Dreher must know?”

There’s all sorts of things wrong with this short version of where this is going.

1. It prioritizes sincerity. *Why* is it OK to mess with your kid’s head as long as you sincerely believe that you’re doing the right thing? Isn’t the actual damage what’s important? My concern about the example of the child being raised in this way is not with the parent’s sincerity, and I don’t really understand why anyone should be concerned with this.

2. Do people really all, honestly, know better today? I’d say that they don’t. Or this really wouldn’t be much of a controversy. I think this is a case of assuming that everyone thinks as you do.

3. “Concealing the possibility” is such a weird potential ethical violation. And its so difficult to actually accomplish all the way through adulthood, as opposed to the commonplace of instilling cultural values into a child that they find it very difficult to escape in adulthood.

105

Sean 04.10.15 at 1:12 am

For those who think Dreher has a “for me but not for thee” view of things: he recently donated some money to an Islamic Center in Houston that had been burned down by an arsonist and defended his donation against readers who didn’t like it:

http://www.theamericanconservative.com/dreher/fighting-religious-bigotry-islam/

106

Bruce Wilder 04.10.15 at 1:41 am

I feel like I should follow up my own comment @ 90

I read Dreher looking into the near-future, at the possibility of being relegated to a trivial subculture — taking “the Benedict Option” — amidst “narrative collapse” in our culture. It is a search for meaning, by a darkly unimaginative fellow.

Liberals are people, who, in the light of day, step behind Rawls’ curtain, and think its a good time to start playing SimCity. Make some rules, build some roads, zone for the future, dedicate a convenient park. Dreher is someone, who steps behind the Veil of Ignorance — like he needs a veil! — in the deepest dark of night, and amidst the shadows imagines that he is staring into the moral abyss. If there’s no god ordering the moral universe, what is to constrain me (or other people — keep in mind we’re behind the veil) from acting like amoral monsters!? The impulsive chaos of the faithless soul alone with itself looms threatening, like the boogeyman under the bed. And, in the shadowy dimness, shared beliefs — shared in the group — provide a common narrative, a common ritual practice, that erects (or acknowledges, if you please) the moral order that constrains other people and honors my own self-restraint in the service of moral convention. Others are constrained by the community’s common acceptance of ritual, convention and taboo, while I am confirmed by my group membership in my own goodness and honor. Whatever my personal shortcomings or quirks, I am not-other, not amoral.

107

Marshall 04.10.15 at 2:13 am

RAF @18: “… atomism, the individual really making choices on the basis of their own perception of themselves and the world around them, isn’t just unwise in terms of respecting the unstated moral or civic requirements of a free and just society, but actually impossible.”

Not just a theological point, but a basic of human psychology. We do not function as hermits or mountain lions, only meeting at the boundaries of our separate territories to mate. “Orthodoxy” in the OP sense would apply to other associations, such as immigrant groups, native tribes, and rural communities resisting encroachment of modernizing “development”. Belonging to this kind of community requires doing what the community does; virtue ethics demands a community with respect to which virtue is practiced … but it doesn’t demand that community to exist in a uniform cultural space. It’s a major fault of modern liberalism (if you ask me) that it doesn’t recognize the existence of separately virtuous spaces, with the result that the discussion about “oppression” has become rather incoherent.

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John Holbo 04.10.15 at 2:17 am

“It prioritizes sincerity. *Why* is it OK to mess with your kid’s head as long as you sincerely believe that you’re doing the right thing?”

?

It obviously isn’t ok except in the sense that it’s more excusable. Your language for talking about this is strange, Rich. Would you say the reason why manslaughter is a lesser charge than murder is that we prioritize ‘sincerity’? I wouldn’t. I would say the reason is that we treat unintended harm differently from intentional ones, for rather well-understood reasons. Is that what you mean? If so, then where’s the puzzle re: what I said?

“Do people really all, honestly, know better today? “

I think so. 20 years ago the ‘traditionalist’ position was ‘gay people are awful so we have to treat them awful’. Now the ‘traditionalist’ position is ‘gay people are good decent people but we have to treat them very slightly shabbily.’ The former position was more coherent, even though it was obviously worse, in some sense.

““Concealing the possibility” is such a weird potential ethical violation.”

How so? Weird because it would be weird to do it? Or weird because it’s weird to focus on it? Restricting largely mental (spiritual) possibilities, by sheltering people from them, seems to me a core function/objective of orthodoxy. So this seems a natural thing to focus on.

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Rich Puchalsky 04.10.15 at 2:31 am

The reason why we treat manslaughter as a crime less serious than murder isn’t because of sincerity, no. But the harm done in the case of raising a child to hate their own sexuality is intentional. A better comparison is why we treat arson as a lesser crime than murder (assuming that the arson doesn’t kill anyone). Someone deliberately did damage, they just didn’t do as much damage as outright killing someone. Does it matter whether they thought they were doing the right thing or not? Unless they are insane to the point of not knowing right from wrong.

“Now the ‘traditionalist’ position is ‘gay people are good decent people but we have to treat them very slightly shabbily.’ “

I think that they are lying to you when they describe this as the new traditionalist position. The new traditionalist position is the old traditionalist position, but the old traditionalist position sounds bad for P.R. purposes.

“Concealing the possibility” is weird because it’s difficult to the point of being implausible, and so different from what parents routinely do.

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John Holbo 04.10.15 at 2:35 am

Let me start in with responses to Russell’s (long) response upthread.

“Chesterton and Rod (we’re friends, so I feel comfortable calling him that) aren’t entirely engaging in a slight-of-hand move, because serious traditionalists (at least within the Christian tradition) really do reject the idea of autonomous selves.”

The trouble here, I think, is that religious liberty is a political value not a religious value. That is, you believe in religious liberty because it makes sense to you given your commitment to other aspects of political liberalism (in the governmental sense, not the liberals-vs.-conservatives sense) not because it flows from your theology. Political liberalism treats people as autonomous selves. You might think that was theologically false but still think it’s the least-bad way to model people, for normative political philosophy purposes. (I think autonomous selves are anthropologically false, but I still sort of use them, for some political purposes. They’re kind of an aspirational fiction.)

This is pretty complicated. But basically I think it comes to this. Everyone who thinks it makes sense to have a form of government of a broadly liberal-democratic character thinks it makes sense to treat people as if they were autonomous selves, for certain purposes.

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MPAVictoria 04.10.15 at 2:38 am

John take a look at some of the quotes from John Wright in the recent Hugo thread or the average red state commenter. Sadly I don’t think “traditionalists” have come as far as we would like.

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John Holbo 04.10.15 at 2:41 am

“But the harm done in the case of raising a child to hate their own sexuality is intentional.”

Not if you don’t intend to harm the child by raising it in that way, which is the case we are considering.

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John Holbo 04.10.15 at 2:45 am

“John take a look at some of the quotes from John Wright in the recent Hugo thread or the average red state commenter. Sadly I don’t think “traditionalists” have come as far as we would like.”

Well, it’s complicated. I would say at this point traditionalism is a very confusing (and ugly!) coalition. But the public political discourse of the right has shifted very significantly. Think about how Mike Pence felt obliged to preface his defense of RFRA with ‘of course it would be wrong to discriminate against gay people …’ Incoherent, but that’s a significant step forward from where politicians were just 20 years ago.

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Rich Puchalsky 04.10.15 at 2:51 am

JH: “Not if you don’t intend to harm the child by raising it in that way, which is the case we are considering.”

But you and the putative sincere traditionalist have different definitions of harm. And the definition of harm that has to matter to a secular state is actual harm, not the harm that supposedly comes from not following religious rules.

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MPAVictoria 04.10.15 at 2:53 am

Point taken John. Lets hope things continue to improve

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Rich Puchalsky 04.10.15 at 2:55 am

JH: “But the public political discourse of the right has shifted very significantly. Think about how Mike Pence felt obliged to preface his defense of RFRA with ‘of course it would be wrong to discriminate against gay people …’ Incoherent, but that’s a significant step forward from where politicians were just 20 years ago.”

That’s nonsense, I think. Liberals have changed the politics on the ground through a lot of work, forcing conservatives to lie about what they believe in order to appear respectable. When the conservatives then lie, they haven’t changed their positions, and they don’t know better. They’re just lying.

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John Holbo 04.10.15 at 3:00 am

Let me also clarify the following thing I wrote upthread (#109).

“The trouble here, I think, is that religious liberty is a political value not a religious value. “

Some people object to this because it sounds to them like it says politics is more important than religion. They think that if they believe religion is ultimately more important than politics – immortal souls more consequential than mere ballot box bickering! – then they should find some deeper form of ‘religious liberty’ to commit to. This isn’t right. Ultimately government is just a means to the higher end of people living their lives. You can believe that it makes sense for government to restrict people rights to exercise their religious beliefs in certain ways without conceiving of government as a God that is greater than God Himself.

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John Holbo 04.10.15 at 3:07 am

“But you and the putative sincere traditionalist have different definitions of harm.”

Precisely. Well, close. We don’t have different definitions. We have different beliefs about what things are harmful. That’s why I’m right and you’re wrong. The traditionalist doesn’t think he is harming the child.

“That’s nonsense, I think. Liberals have changed the politics on the ground through a lot of work, forcing conservatives to lie about what they believe in order to appear respectable.”

Ah, we’ve had this argument before and will probably have to agree to disagree. You think conservatives are lying and know they are lying. I think they are experiencing cognitive dissonance of a severe sort. I think Mike Pence sincerely believes he would never discriminate against a gay person, because he’s not the sort of person who would discriminate. That conservatives want to discriminate against people is a liberal lie! Nevertheless, he favors legislation that is discriminatory. He’s an incoherent confabulatory, not a Machiavellian deceiver. But, of course, it’s probably a bit from Column A, a bit from Column B.

But certainly many conservatives – the Ross Douthats, the Rod Drehers – do seem to sincerely believe that gay people are nice and decent and make wonderful friends and neighbors and even parents. They believe they need to be completely protected against legal discrimination. Yet, for some reason, they still need to be treated as second-class, just ever so slightly. It’s incoherent, morally and legally – looks to me – but that’s where they are in 2015. Seems to me.

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Russell Arben Fox 04.10.15 at 3:30 am

John,

Thanks for the responses!

[R]eligious liberty is a political value not a religious value. That is, you believe in religious liberty because it makes sense to you given your commitment to other aspects of political liberalism (in the governmental sense, not the liberals-vs.-conservatives sense) not because it flows from your theology….Everyone who thinks it makes sense to have a form of government of a broadly liberal-democratic character thinks it makes sense to treat people as if they were autonomous selves, for certain purposes.

The first part of this makes sense for nearly all the serious religious conservatives I know (among the few for whom it doesn’t are Reverend Neuhausian dead-enders, Christian neocons and First Things readers for whom it is always 2001-2003, and the whole range of liberal democracy can still be conceived in terms of the–perhaps unfortunately but still necessarily violent–unfolding of America’s uniquely Christian theological mission in the history of the world). The second part doesn’t apply quite as well though, I think. Your original argument doesn’t depend upon Dreher, Chesterton, and others acting as if people were autonomous selves “for certain purposes”; if they really didn’t, in your view, believe it right alongside believing in natural law and/or the divine ordering of the self then they actually couldn’t be engaging in what you saw as a “slight of hand” in the first place–instead, they’d just be putting on a show. I prefer to put it the way I did; religious liberty is, for the deeply committed traditionalist living in the midst of pluralism, a vitally important strategy, but not a defining political value, because the foundation of political valuation, for them, has to begin somewhere else besides individual choice. (Or else they’re all just, as I said, showy hypocrites, which both you and I don’t think they are.)

Ultimately government is just a means to the higher end of people living their lives. You can believe that it makes sense for government to restrict people rights to exercise their religious beliefs in certain ways without conceiving of government as a God that is greater than God Himself.

But wouldn’t this be subject to the same sort of critique I imagined the deep religious conservative making above–that you’re coming into the argument already assuming that government is a tool which individuals use to achieve their ends, and not, in fact, an organic part of those ends themselves? (What end? The City of God, Zion, the City on a Hill, etc.–the whole religious communitarian vision.) Of course, there’s an obvious response to that: unless you’re a pre-Vatican II Catholic, and maybe not even then, you don’t actually believe that about the state, do you? I mean, Protestantism (and not just pluralism!) has done its work on Rod Dreher and all the rest of us alike.

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Rich Puchalsky 04.10.15 at 3:38 am

Well, unless you have developed telepathic powers, we can’t know which it is. So you prefer to believe that they are incoherent confabulators — and then, for inexplicable reasons, you treat their incoherent confabulations as if they are logical arguments that mean something — and I prefer to think that they are coherent deceivers, with traditional positions that are actually traditional and not created 20 years ago.

The deceit on their part doesn’t mean that we can ignore their rights, though. From my point of view, they’ve been lying thugs and bullies for all of American history. But a whole lot of politics is how you get along with lying thugs and bullies, because they are always there.

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John Holbo 04.10.15 at 3:43 am

“for inexplicable reasons, you treat their incoherent confabulations as if they are logical arguments”

I thought I was treating them as illogical arguments.

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John Holbo 04.10.15 at 3:59 am

Response to Russell. It is certainly true that some religious beliefs are inconsistent with political liberalism. If you think you have a religious duty to smite the heretic wherever you find him … well, John Rawls is probably not for you. The mistake is in believing that there is some necessary conflict between holding ‘deep’ religious convictions and being committed to political liberalism. This isn’t necessarily a case of believing in two absolute Gods. Because government is just a means to various ends. You can believe in religious ends and liberal means as the optimal political formula for achieving them. No necessary contradiction. But potential for conflict, sure. Religious believers aren’t really any different than atheists here. Atheists have ideas about what makes life worth living, let’s say. If the optimal political order, for making life worth living, is some form of liberalism, then go for liberalism. If some other political order would be better, go for that instead. Potential for conflict. Not necessary conflict.

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ZM 04.10.15 at 4:32 am

“But the harm done in the case of raising a child to hate their own sexuality is intentional. A better comparison is why we treat arson as a lesser crime than murder (assuming that the arson doesn’t kill anyone). Someone deliberately did damage, they just didn’t do as much damage as outright killing someone. Does it matter whether they thought they were doing the right thing or not? Unless they are insane to the point of not knowing right from wrong.”

I don’t think that is true really. A fictional scenario is given in The Tales of the City books where Michael Tolliver’s mother is a baptist who believes homosexuality is wrong. But the treatment of her isn’t really of a person who is deliberately trying to harm her son , and in the letter to mama the character identifies what he thinks she will be feeling reading his letter with his own feelings before he accepted being and was accepted as gay. But she is portrayed as being misled rather than as deliberately trying to harm Michael Tolliver if I recall rightly.
http://paxromano.blogspot.com.au/2006/06/for-gay-pride-month-armistead-maupins.html?m=1

Also I think the ‘traditional’ view given here is not the only traditional view – Pope Francis pointed out recently that as well as doctrine the church is meant to focus on pastoral care – from the pastoral tradition it becomes more important to accept and welcome gay church members or gay people in the community and attend to their needs.

And further I am dubious about the question of “do religious laws or government laws trump all” – since this just depends on what is just or unjust – and neither governments or religions have been infallible in this regard historically so one or the other can trump depending on the issue (like government treatment of gayness has improved and is more just, but government treatment of refugees remains unjust, and not making laws to mitigate climate change is unjust too – it is irrelevant if the just or unjust position is held by a religion or the government)

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Rich Puchalsky 04.10.15 at 4:47 am

“But she is portrayed as being misled rather than as deliberately trying to harm”

It doesn’t matter. Some people think that smoking isn’t harmful. If they teach their kids to smoke, it wouldn’t matter whether they are misled or whether they believe that their kids are happier than way: their kids are being harmed. Their different beliefs about what is harmful are objectively false, in the same way that religious beliefs about upbringing are false in terms of things that we can measure, like suicide rates.

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ZM 04.10.15 at 4:50 am

I also question the idea that Christianity is opposed to liberalism’s idea of autonomous selves – most Christianity holds people have free will which is about the same as having autonomous selves in the context of an existence with various constraints.

And there are so many problems with liberalism anyhow, I don’t know it is worth trying to argue it is south better than traditionalism overall (specific instances like this one about gay people is different from posing liberalism in general is the best of all worlds)

I mentioned an article on post-liberalism on the gorrrr thread, which has petered out so since this thread is about liberalism I will copy my comment from gorrrr below.

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ZM 04.10.15 at 4:54 am

Rich Puchalsky,

that is true – but how we treat people is often in accordance not just with what they do but their intentions. The mother in the book is very difficult for Michael Tolliver but he doesn’t treat her as if she is deliberately trying to inflict harm on him. He writes he the letter because she is helping an anti-gay organisation and he wants to try to stop her inflicting harm on others.

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ZM 04.10.15 at 5:05 am

(Copy of my comment from the gorrrrr thread, which was written in response to geo’s comment about inequality and affirmative action. The article on post-liberalism I quote is by a notre dame professor who argued that liberalism is bound up with the maintenance of inequality so looking to post-liberalism might be positive http://www.abc.net.au/religion/articles/2014/12/11/4146762.htm i think using just this one example of homosexuality is too narrow to compare liberalism with “orthodoxy” – and also as I mentioned at the start – John Holbo ends up arguing not just with liberal philosophy but with evidence. Rich Puchalsky picks up on this evidence usage and says John Holbo should not be so lenient towards orthodox people. This is sort of correct like as I mentioned below Jonathan Franzen’s position on climate change has no redeeming features – but I also think you should take intentions into account (but we have evidence of Franzen’s bad intentions with the throwing of coins on the ground to spite old women event)

I think that economic inequality is only one type of inequality, so focusing on that alone is not quite enough. Also economic inequality has been difficult to “attack” as you put it. The mode of increasing economic growth as a rising tide lifts all boats has led to just as much inequality as ever and too much unsustainable production/consumption.

Even if people don’t care much about biodiversity losses from this, this unsustainability will cause more inter-generational inequality. It was quite displeasing to read Jonathan Franzen in last week’s New Yorker asserting how he himself is emulating Saint Francis* by traveling by plane to see bird conservation efforts in South America and how he thinks it is cruelly puritanical to suggest mitigating climate change is the proper thing to do for people and birds and how it is also oh so boring of people not to embrace this historical period where he may sublimely imagine and anticipate his own death coinciding with the death of the Earth itself (this hyperbole is Jonathan Franzen’s not my own)

Robert Manne (politics professor and public intellectual for non-Australians) wrote a critical response to Franzen’s essay, making the point that while Jonathan Franzen says doing anything himself to reduce his personal ghg emissions would only make the very slightest bit of difference so he may as well do as he please and everyone else may as well do as they please and anyone who says otherwise is a terrible spoil sport — we don’t make this illogical argument about racism claiming that racism can only be solved by the state so individual efforts to not discriminate on the basis of race are pointless, and as the state will never agree to or be able to solve racism we should therefore give up hope of ending racism and everyone should jolly well be allowed to enjoy being just as racist as they want.

Manne also posed that perhaps Franzen’s ideas are representative of liberal Americans generally as he wrote it so frankly and publicly without any shame — but I think this is not necessarily true because I remember the other year when Franzen wrote about how Edith Wharton was awfully ugly and how one time he threw coins on the ground just to see poor old women painfully bend to pick them up, and most people seemed to think these things were not representative of liberal America but only representative of Jonathan Franzen being somewhat of an arsehole

Anyway, if continual growth is liberalism’s only way of trying to decrease inequality, then liberalism is a failed philosophy unless it can be modified to adequately respond to present problems.

There was an article on our public broadcaster’s internet site on post-liberalism a while ago, the argument running that as liberalism as an ideology is very much bound up with both creating wealth/property and relatedly with maintaining inequality (eg. John Locke, James Madison, and lately Tyler Cowen) rather than try to defend liberalism there might be “a better possibility that is, at this point, still difficult to imagine. What I want to try to outline are reasons why we should actively hope for an end to liberalism, and seek a fourth sailing – after antiquity, after Christendom, after liberalism – into a post-liberal future…. It is now the task… to begin to envision an alternative future to the one to which we now seem destined, which will focus especially on beginning to put together what liberalism has put asunder.”

So if we are looking to decrease inequality now, it should be in the context of needing to address over-consumption as well — and maybe in a post-liberal (but not Stalinist) outlook poverty and wealth are both equally problematic.

I think an outlook that problematises wealth as well as poverty is also potentially better for addressing other inequalities relating to race and gender etc. as groups previously excluded from liberalism’s apex can — rather than being expected to aspire to reach that apex — participate in making other norms that do not have that legacy of exclusion, and are not predicated on the less equal status of others. I hope that makes sense, it is a bit ramble-y.

* Franzen demonstrates a poor knowledge of Saint Francis since the Saint is well known for being very strict about living a life of poverty, and he never encouraged plane trips to see bird conservation far away when people can just see bird conservation in their local areas . If someone was absolutely set on seeing bird conservation efforts far away, I’ve no doubt Saint Francis would recommend a long contemplative pilgrimage by foot — maybe even barefoot to build character. Possibly the New Yorker could commission a follow up “Jonathan Franzen walks barefoot all the way to South America as a more representative emulation of Saint Francis” essay

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John Holbo 04.10.15 at 5:12 am

Rich, a better analogy might be this. Suppose doctors believe that the presence of a certain kind of growth demands major surgery to remove them. Later it turns out that these growths are benign – not the terrible forms of cancer they were believed to be! – and surgery is not needed. No treatment is needed. The surgeries were therefore utterly ill-advised. The doctors did a lot of unnecessary harm. I don’t think it’s helpful to insist that these doctors are guilty of intentionally harming patients. It’s true that the doctors intended to harm the patients, insofar as they intentionally cut them with scalpels. But, in a more basic sense, the doctors did not intend to harm their patients. Right?

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Helen 04.10.15 at 5:12 am

Rich:

3. “Concealing the possibility” is such a weird potential ethical violation. And its so difficult to actually accomplish all the way through adulthood, as opposed to the commonplace of instilling cultural values into a child that they find it very difficult to escape in adulthood

Dreher:

Christians should put their families on a “media fast,” he says. “Throw out the TV. Limit Netflix. You cannot let in contemporary stuff. It’s garbage. It’s a sewage pipe into your home. So many parents think they’re holding the line, but they let their kids have unfettered access to TV, the Internet, and smartphones. You can’t do that.

“And if you can’t trust that the families of the kids that your kids play with are on the same team with all this, then find another peer group among families that are,” he said. “It really is that important.”

So Dreher is advocating keeping families in physical and social isolation, which is a dangerously fundamentalist position (and we’ve seen the many and varied isolationist “sects”, like The Family, Scientologists and the Children of God, who don’t seem to be very successful at establishing an ethical social order.) Isolation and paranoia does seem to foster such outcomes – the very opposite of what Dreher is hoping for.

I find his whole outlook very worrying. It is one thing for Sebastian to claim he doesn’t care someone won’t make a cake for him (although I am sure many people would disagree) but it is another to undergo a forced pregnancy, even a life threatening forced pregnancy, which is what would be happening if the Drehers of this world have their way. Like I said, not just offensive – dangerous.

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Sebastian H 04.10.15 at 6:13 am

It is important to note that John’s hypothetical about doctors is entirely non-hypothetical.

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magistra 04.10.15 at 6:54 am

I find the ‘Benedict option’ truly weird, because it shows how far its enthusiasts have moved from traditional Christianity. First of all, Benedict of Nursia was not trying to preserve Christian civilization and culture against the barbarian hordes. The only early monastic founder who was trying for that was Cassiodorus at Vivarium, but I suppose the ‘Cassiodorus option’ wouldn’t have the same ring.

Secondly, one important point about monasticism was that it involved removing oneself from one’s family, because to have a family was inevitably to entangle oneself in society and social demands (as St Paul was already pointing out). Peter Brown’s classic book The Body and Society shows how celibacy was precisely bound up with this refusal to conform to social expectations. And yet these celibate communities flourished, because there was renewal through conversion. People were attracted to monasticism. The Benedict option shows a profound lack of belief in the ability of particular forms of modern Christianity to attract others, to inspire outsiders to join into this community.

And as for smartphones making ‘holding the line’ impossible, early Christians lived in a landscape where there were crucified criminals set along the roadside and a Roman emperor entered one or more same-sex marriages. What could kids today see that compared to that?

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bad Jim 04.10.15 at 7:11 am

The hard problem for orthodox prejudices is that the consensus is turning against them. It used to be universally agreed that blacks and women were inferior and gays were mentally diseased, but such traditional beliefs are not only no longer widely held, they’re not even considered respectable.

This is a bit of a problem for those who venerate their age-old doctrine: not only does it no longer have the force of law, but they’re ridiculed by their fellow citizens for clinging to their discredited certainties.

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John Holbo 04.10.15 at 7:54 am

“It is important to note that John’s hypothetical about doctors is entirely non-hypothetical.”

Yes, this is true.

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Anderson 04.10.15 at 9:29 am

“But certainly many conservatives – the Ross Douthats, the Rod Drehers – do seem to sincerely believe that gay people are nice and decent and make wonderful friends and neighbors and even parents.”

Dreher says this where?

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42ofakind 04.10.15 at 9:33 am

I have often pondered if freedom and liberty really are different concepts. And, more importantly, if liberals should be vocal in making the distinction. There is a clear semantic distinction. Freedom is closest to nature (which I think conservatives misunderstand because in nature there is only territory not property with its attached rights). The concept of liberty requires a social context.
One would never say that someone took indecent freedoms with a minor, or that one wasn’t free to disclose information that another told them in confidence. But we use liberty in both those contexts because liberty implies obligations between two or more–whereas freedom is all about self. I think even the inscription on the Statute of Liberty is applicable as the words there define liberty as the necessity of being open to the downtrodden, whereas the tenor of recent immigration debates argue that if we are more fortunate, then we should be free from those who are nearly powerless.
Freedom allows, even revels in, power disparities. If wealthy, I should be “free” to contract with those in need of work even if they are desperate and willing to do my menial tasks for subsistence wages.
But when children are involved the brutish nature of true freedom is more clearly displayed. One should not be free to wield all the power adults, especially parents, have in a relationship with a child. So using ones freedom to impose orthodox religious beliefs on a gay child is in fact “taking liberties.”
All that being said, this is a battle that is not likely to ever reach the masses who have bumper stickers with whatever version of “Live Free, or Die.” Still, there is a great intellectual distance between that and “Give me Liberty or give me death.”

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Bruce Baugh 04.10.15 at 11:10 am

I have myself had medical treatment that turns out to have been harmful, without bearing ill-will toward some of the practitioners involved. I’ve also experience religiously justified prejudicial treatment that I bear a lot of ill-will about.

The difference is simple: the doctors were making good-faith efforts to understand the fact of my condition, the facts of the human body in general, the facts of productive therapeutic response, and like that. In the face of uncertain, turbulent conditions, they proceeded as seemed wise in the light of my experience, theirs, other patients’, and other doctors’ and clinicians’, adjusting as need seemed to be in the light of constant updates.

That’s exactly what the bigots didn’t do, and exactly what Dreher isn’t doing. They are substituting things for honest observation of actually existing persons and their circumstances, or for continued reflection on ongoing experience, or both. That’s also what the doctors I do bear ill will toward did. The threshold is simple enough: when they say “that can’t be right, because I already know X” and then proceed on the basis of what’s in their heads rather than what’s in the world, to the detriment of those they’re acting upon.

There’s kind of a spectrum here, from “I think that the actual cause is something else, for reasons X and Y” to “I know, so certainly that I don’t even have to do diagnostic work nor heed the results if I bother”. Ditto for outcomes from “maybe nothing anyone could have done here would have relieved this suffering” to “this was entirely unnecessary suffering arising entirely from counter-factual justifications for ignoring the realities of the situation”. But the gap between the poles in each case is real and huge.

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Rich Puchalsky 04.10.15 at 12:31 pm

I don’t believe that traditionalists who bring up their gay kids to hate their sexuality are really like doctors who engage in harmful medical procedures because they don’t know any better. The traditionalist, as Bruce Baugh says @ 135, has an affirmative theory that evidence won’t shake. That theory says that there is a certain kind of harm that come to a child, the harm of not following God’s will or God’s commanded way of life or of committing what God considers to be sins. This harm, if taken seriously, outweighs even quite severe merely physical or emotional harms.

So it’s not just that traditionalists are like bad doctors. The doctor who does physical harm does so on the mistaken belief that this will lead to less physical harm in the future. The traditionalist does harm on the belief that this will lead to less harm in the future, *but this later harm is strictly imaginary*. I mean, who knows, maybe it isn’t and maybe God is really waiting to punish everyone, but a secular society has to treat this belief as pretty much a fantasy. And really, almost every religious person thinks that other religions are harmful fantasies, they just don’t think it about their religion.

So sincerity is a bad test in this case. The last thing you want is someone really sincerely committed to doing harm for fantasy reasons.

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parse 04.10.15 at 12:37 pm

Rich, a better analogy might be this. Suppose doctors believe that the presence of a certain kind of growth demands major surgery to remove them. Later it turns out that these growths are benign – not the terrible forms of cancer they were believed to be! – and surgery is not needed.

As Bruce suggests, maybe we need to tweak the analogy a little bit. It isn’t that doctors generally believe that surgery is needed; it’s only a particular group of doctors advising this treatment. And it isn’t later that it turns out the growths are benign–there’s evidence that the growths are non-cancerous, and the great majority of the medical profession accepts that, but the group of doctors who are advocating intervention not only want to be allowed to perform the operations, but also demand that insurance pay for the procedures.

I think John’s position is that the doctors are probably sincerely confused, and Rich and others would conclude they are lying charlatans out for a payday at their patients expense.

Does the question of whether they are intentionally inflecting harm depend on whether you side with John or Rich, or is it fair to conclude on the results of the operations that the doctors’ account of their state of mind isn’t particularly important.

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Rich Puchalsky 04.10.15 at 12:47 pm

Helen @ 129:”So Dreher is advocating keeping families in physical and social isolation, which is a dangerously fundamentalist position […]”

I already commented on _The Nurture Assumption_, but the passage that you quoted contains the sentence “Limit Netflix.” Do you think that by limiting Netflix parents can really conceal the possibility that happy LGTBTQ people exist from their children? Dreher wants it both ways: he’s not actually withdrawing to a walled-off compound somewhere, yet he wants to control media.

Perhaps it’s just the phrase “conceal the possibility” that I don’t like. It seems to imply that if your child ever sees one episode of _Glee_, it’s all over. Possibility not concealed. While the commonplace is that a traditionalist sits their child down and says “Oh, those gays may look happy in the media but really they are sinners cursed by God, and you would be too if you followed that path. They live the wrong way, and they can’t really be happy for long.” The traditionalist might have to make sure that their child was never in extended contact with openly gay people, but that’s not “concealing the possibility”.

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bianca steele 04.10.15 at 1:09 pm

To bring in C.S. Lewis again, I think he’s about one-third Benedict option. On the one hand, he tells us Christianity is all about just basically being a good person, getting along in community wih others, being fair and kind and virtuous. On the other, he aligns himself with a certain kind of defense of dead-Enders whose way of life is, to all appearances, doomed, but who have the right to felt they’re essentially good people, all things considered, who have a way of life that mostly keeps them from doing evil, and so on. I’m not sure why this idea should be associated tightly with Christianity, but it seems to be so. (The final third is finding spiritual meaning in literature, or something like that.)

But after seventy or so years, that Defense of the Shire idea is getting taken a lot more seriously, too seriously, and the idea that all good things must come to an end isn’t considered part of it anymore, maybe.

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Rich Puchalsky 04.10.15 at 1:31 pm

Looking back over my comments, I see that I’ve given the impression that I must think that traditionalists like this are pretty horrible people. Sadly, that’s correct. Jesus’ first miracle was turning water into wine for a wedding party, and a Christian theology that’s all about how some people can’t have weddings and it’s really important to hold the line so people can refuse to make cake for them, well…. look, these people have always been in the majority, and they’ve never met the God that they created for other people. Here’s a poem about it I’ll be reading next week.

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MPAVictoria 04.10.15 at 1:53 pm

“they’ve never met the God that they created for other people”

Great turn of phrase Rich.

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bianca steele 04.10.15 at 1:53 pm

Rich,

That’s not something I get from your posts.

But just as a debate about issues gets sidelined by turning it into a litmus test of something like theology that’s so abstract that it could be anything, a debate about how a group of people who don’t like the way the world is right now can live in it has turned into a debate about whether people who don’t commit to turning the world inside out for that group are mean. It’s a tactic for trying to frame people who have different opinions as morally required to withdraw from the debate, in a way their opponents aren’t.

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bianca steele 04.10.15 at 1:55 pm

Meaning ” I see that I’ve given the impression that I must think that traditionalists like this are pretty horrible people.”

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someguy88 04.10.15 at 2:11 pm

If we gathered up all the children who will suffer 10 times or more the damage, a homosexual raised in a other wise stable and loving environment by parents who believe homosexuality is a sin will suffer, and distributed them to all the right minded folks, like John, who were willing to take them, we would end up with millions of children rotting in state warehouses. This would be bad thing. (CT Thread, so, I need to point out that children in state warehouses is a bad thing.)

John do you ever engage in a thought experiment where you do not conclude that you are holier than the pope cause you is cool with gay sex?

Do you ever engage in a thought experiment where you do not conclude that in theory, if not in pratice, you should be granted vast powers to tell people how to live?

You are scary. Stay away from my kids. Please.

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Vasilis Vassalos 04.10.15 at 2:16 pm

What Rich says: “Liberals have changed the politics on the ground through a lot of work, forcing conservatives to lie about what they believe in order to appear respectable. When the conservatives then lie, they haven’t changed their positions, and they don’t know better. They’re just lying.”

As for this, it is so much wishful thinking:

“I think Mike Pence sincerely believes he would never discriminate against a gay person, because he’s not the sort of person who would discriminate. … Nevertheless, he favors legislation that is discriminatory.”

But certainly many conservatives … do seem to sincerely believe that gay people are nice and decent … They believe they need to be completely protected against legal discrimination. Yet, for some reason, they still need to be treated as second-class, just ever so slightly. It’s incoherent”

I would think there is a series of tests to clear these up:

a. Do these nice conservatives ever concede that their preferred legislation is discriminatory?

a1. If yes, what do they do in the face of that concession? Do they still go for it? Then you have actual evidence of what side of their “confusion” wins.

a2. If no, then they have a different definition of discrimination than you that allows them to be consistent if they truly believe it (they’re still lying when they say they believe your definition, btw). Ergo, no cognitive dissonance. Now the question is, if you stand by your definition of discrimination, why do you still consider them confused instead of reactionary? (even if we ignore the question of lying).

And as mentioned above by many, a major issue when it comes to sincerity is whether these religious freedom fanatics want to extend the religious freedom to other religions, including Muslims. Do you think they do? Do you have any evidence they do? Not in relation to gays, in general? If not, how does that count towards your belief in their sincerity?

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John Holbo 04.10.15 at 2:50 pm

“So sincerity is a bad test in this case. The last thing you want is someone really sincerely committed to doing harm for fantasy reasons.”

I am glad that we can now agree to set aside ‘most sincere’ as our moral criterion. (Honestly, I was starting to feel like I was sitting with Linus in the pumpkin patch, waiting for the Great Pumpkin to rise.)

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Jerry Vinokurov 04.10.15 at 2:51 pm

I like the OP and the discussion a lot. But I also think it’s missing something.

So much of the conversation about what “religious freedom” means and is seems to me to miss the way that religious freedom actually operates in liberal societies. And the reason why I think it misses that is because all too often, liberals are not prepared, for whatever reason, to view liberalism as an actual positive creed. We talk a lot about relatively abstract concepts like autonomy and conscience and so on, but what we don’t talk about is the fact that liberal societies fundamentally hold autonomy to be a good thing, in theory if not always in practice. Even conservatives pay liberalism the tribute of adopting its vocabulary because of how influential that vocabulary is; the adoption may be hamfisted (c.f. Anthony Kennedy) or directed toward bad ends (conservatism generally) but words like “freedom” and “choice” are rooted in liberal conceptions of autonomy, even if what they’re being used for is to subvert those conceptions (“Autonomous self conception more important than First Amendment,” whines conservative who could not give fewer shits about either).

Without that acknowledgment that liberalism has actual moral content and isn’t just a neutral set of rules for resolving property disputes or whatever, it’s hard to get anywhere with people like Dreher. The thing is, Dreher is absolutely right to worry about “the secularizing triumph of a new church or ideology,” to use Russell Arben Fox’s excellent phrase, because that is exactly the plan. It’s a plan that is not polite to mention in (politically) mixed company, but it’s still basically the liberal ideal, tacitly assumed. The triumph of secular, liberal institutions over religious ones, such that religion becomes a purely private concern, is what a lot of liberals actually want. The only reason why they’re coy about it is because it’s not nice to say so.

And this gets right to the heart of the whole accommodation puzzle: you get to be accommodated when your accommodation request doesn’t impinge on various other liberal ideals considered to be more important. Want to not work on a Saturday or wear a head covering or not eat pork? Cool beans, we’re broad-minded enough for that because none of those things actually matter. They’re fundamentally private; they don’t really affect the individual’s interaction with the state. But you want to force a woman to change seats on a bus or airplane, or deny your child medical treatment, or discriminate against LGBT people? Well, you can’t do that; that conflicts with all those other liberal values we like more, so tough shit.

Liberals being afraid to say that last part isn’t doing anyone any good. It opens up space for what djw over at LGM called the weaponization of religious exemptions. And that makes sense, because if you can’t confidently assert what you think is the superior moral position and prefer instead to hide behind procedural tricks, you should certainly expect that those procedural tricks will be used against you. Adopting the language of multiculturalism makes sense for the religious right if that’s the procedural route that will get them what they want, just as adopting liberal vocabulary to subvert liberal ideas is a good tactic for them.

Dreher can see all of this because he’s defending a losing front in the culture wars, namely that of LGBT rights and universal marriage specifically, and sexual autonomy more broadly. Liberals tend to either not see it (because it’s a tacit background assumption without need for articulation), or don’t want to acknowledge that they see it (because it’s bad politics).

I say all this as an advocate for the triumph of liberal secularism, broadly understood. I think reproductive rights and sexual and personal autonomy are more important than religious freedom. Not just “religious comfort” but actual religious freedom; you are not free to do something if your doing that thing violates a higher value. Of course, I disagree with the religious right on what things have higher value, but the negotiation of that disagreement cannot proceed on the basis of some proceduralist abstraction. It can only move forward by actual articulation of the values at stake. There are no first-principles derivations of the primacy of liberal secularism; its advocates can only hope to convince more and more people that we are right with the force of our moral arguments. But in order to do that, we have to be willing to actually make those arguments, rather than hide behind procedural screens.

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Rich Puchalsky 04.10.15 at 2:57 pm

John Holbo: “I am glad that we can now agree to set aside ‘most sincere’ as our moral criterion. “

I brought it up because you brought it up. If you’re now agreeing that you originally wrote something that you’ve reconsidered, that’s fine. Here’s what you wrote in the OP as part of the short version of where this was going:

“It’s all very well to mess with your poor gay kid’s head in awful, traditional ways, so long as you wrongly believe being gay is always and in every way horrible, miserable, shameful and bad. But once you yourself don’t believe that – […]”

That’s a moral test distinguishing between “it’s all very well to” and “But once you yourself don’t believe that” on the basis of sincerity.

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Jerry Vinokurov 04.10.15 at 3:00 pm

Re: stupid/confused or evil.

It’s a big, both/and world. The foot soldiers aren’t doing some kind of complex political philosophy, they just think gay people are gross and that being “Christian” should grant them privileged status to tell others what to do. The top layer of conservative “intellectuals” (e.g. Robert George, the pseudonymous Kingsfield) also think gay people are gross but they have access to a much more wide-ranging vocabulary to express that sentiment. This makes it possible for them to deceive in creative ways not available to the rank and file.

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Rich Puchalsky 04.10.15 at 3:11 pm

Jerry Vinokurov: “The thing is, Dreher is absolutely right to worry about “the secularizing triumph of a new church or ideology,” to use Russell Arben Fox’s excellent phrase, because that is exactly the plan.”

I tried to bring this up with my comment about left anarchism earlier. Anarchism — at least the particular version that I hold to: I shouldn’t speak for anyone else — certainly does value autonomy, want positive conceptions of society that value it to triumph over traditionalism and capitalism, etc. But anarchism disavows the use of the state to force everyone to value it. Therefore, looking an anarchist ideas may be useful precisely when you want to disentangle valuing autonomy from using the state to enforce a social order.

There’s a lot about Dreher’s wanting to have his wedding cake and eating it too that depends precisely on the same capitalist order that he denounces when it bring him _Glee_ episodes. If he doesn’t want to work on a farm — and really, he doesn’t seem to want to — then he has to be cosmopolitan. He now lives in a society in which systems of control are set up to bring him products and services from all over without him having to deal with actual people from all over.

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mattski 04.10.15 at 3:50 pm

That’s a moral test distinguishing between “it’s all very well to” and “But once you yourself don’t believe that” on the basis of sincerity.

JH didn’t mention sincerity. I think ‘intent’ is a better word for what he was getting at.

But, broadly, labeling certain people we disagree with as “horrible” isn’t a skillful way to move forward. It’s important and useful to develop compassion for our adversaries. What makes them tick? What is the appeal of orthodoxy? Clearly, ISTM, the appeal of orthodoxy is the (false) sense of stability and order it seems to offer. Religious conservatives are frightened by change, by disorder, by uncertainty. Well, so are liberals and pretty much everyone, but fortunately liberals aren’t as a rule taught to fear disorder. So maybe we tolerate it better than some?

But if our political adversaries are suffering from an excess of fear is there anything we can do to potentially alleviate that? Maybe yes. Maybe engaging them with patience and compassion can help. Labeling them horrible people probably won’t decrease their feelings of being threatened by secular society. Labeling them horrible probably won’t improve our own behavior towards them!

Seems to me that cries for “religious liberty” can easily be tested by asking how willing group A is to extend the same privileges to groups B, C, D & etc. Indeed, doesn’t this quickly imply that the ‘public sphere’ needs to be a neutral space where religious idiosyncrasies must be checked at the door?

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John Holbo 04.10.15 at 4:04 pm

“I brought it up because you brought it up. If you’re now agreeing that you originally wrote something that you’ve reconsidered, that’s fine.”

Rich, I didn’t bring it up. You attributed it to me early on and I denied it and, when you agreed that it wasn’t the concept we wanted, I thought we could agree to agree. If you won’t agree to agree with me, even if we agree, I’m not sure what to do. (If YOU now want to sit up in the likeliest pumpkin patch, sincerity-wise, fine. But count me out.)

I obviously think that conservatives are suffering from cognitive dissonance and are, in effect, trying to spin their way out of moral guilt re: a bunch of inconsistent elements of their moral view. They have changed their minds about some things, but fully thinking through the consequences of those changes would be painful. They are loath to do it and are, as a result, confabulating up a storm over ‘religious liberty’. They don’t want to have been wrong, hence are straining for some frame in which the final settlement re: all this gay marriage stuff appears to confirm their superior moral status and discredit the other side as haters of liberty. I am not sure why you would describe such a roiling state of cognitive dissonance and confabulatory resentment as ‘sincere’. I wouldn’t, so I don’t. It’s not that ‘insincere’ would be exactly the word for it either. We want different words.

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Trader Joe 04.10.15 at 4:09 pm

So if the baker who doesn’t want to make cakes for gay weddings “shouldn’t be a baker” if he has that attitude, one guesses our poor baker should also be compelled to make cakes for KKK rallies, anti-abortionists and republican caucuses even though they may be equally opposed to those functions and organizations.

Perhaps religious freedom is the wrong grounds to use, but why should the baker be compelled to provide a service he’d prefer not to provide? Up and down this thread people have defended the right of personal autonomy – when does the baker get to not have to bake?

To be clear, I’m not supportive of the Indiana law as originally drafted and don’t think the intent of that law was entirely well concieved – that said, this whole discussion has definitely raise my antanae about where the line is between respecting the rights of one class where it may cause an infringement of the rights of another class.

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mattski 04.10.15 at 4:16 pm

when does the baker get to not have to bake?

When the baker “keeps his/her own counsel?”

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John Holbo 04.10.15 at 4:25 pm

“Perhaps religious freedom is the wrong grounds to use, but why should the baker be compelled to provide a service he’d prefer not to provide? Up and down this thread people have defended the right of personal autonomy – when does the baker get to not have to bake?”

Just for the record: I think it would be nice, and probably ok, if bakers could refuse to bake cakes for people they despise. Or at least refuse to have to write messages on them that they despise. I think Democrat videographers should be able to refuse to video a Republican rally, if they prefer not. And vice versa. A Jewish printer shouldn’t have to print up 500 posters for the KKK rally. That would be nice.

But, as you say: this really isn’t a religious liberty point, properly.

And if we decide to go this way – i.e. allowing business to deny service if there aren’t really serious, pressing, systematic Jim Crow worries – we should at least have the decency not to feign that there is something weird about members of a historically despised and oppressed minority group getting riled up about people denying them service. Even if we decide it’s permissible to let the bakers refuse service, because the customers can just go to another vendor, it’s not only permissible but entirely appropriate for the despised minority group to get pretty pissed about this treatment. And to make their feelings about this known. You shouldn’t threaten to burn down someone’s pizza parlor. But, by the same token, if you are a jerk to a whole group of people, it won’t be exactly surprising if they don’t say ‘well, everyone has a right to be a homophobic jerk, after all.’ It’s probably not the first thought that occurs, after you have been insulted and discriminated against.

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Marshall 04.10.15 at 4:31 pm

Individual autonomy is all very well, the point being that individuals have the ability to choose their own values, and that’s the way it is in the land of organisms, in the field of evolution. But the chosen values need to come from somewhere. It’s no good insisting that the values I can articulate through religious language “must be checked at the door”: Jesus’ recorded first public presentation was a gloss on Isaiah: “He has anointed me to proclaim good news to the poor, to set the captives free, to bring sight to the blind”. You don’t have to be religious to have those values, but those are values of religion, and I don’t see that it’s messing with the kids’ heads to teach them using that language. Everybody here agrees that “cultural relativism”, although theoretically just True, has limits in practice, right??

“Orthodoxy” does evolve. (Good thing too, heterodox as I am personally). Slavery used to be OK, genocide used to be expected. This absurd focus on sexuality, homo- or feminized, will likewise evolve, no need to throw the baby out with the bath water.

That said, “Professor K” has his head where the sun don’t shine.

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Rich Puchalsky 04.10.15 at 4:47 pm

JH: “I obviously think that conservatives are suffering from cognitive dissonance and are, in effect, trying to spin their way out of moral guilt re: a bunch of inconsistent elements of their moral view. […] I am not sure why you would describe such a roiling state of cognitive dissonance and confabulatory resentment as ‘sincere’. I wouldn’t, so I don’t. “

I didn’t say that you did. Your original paragraph made a distinction between the traditionalists of before 2o years ago — the one who wrongly but sincerely” believe being gay is always and in every way horrible, miserable, shameful and bad” — and those now, who are suffering from cognitive dissonance and confabulatory resentment. So the sincere traditionalists are, in your description, the old ones, not the new ones.

And your paragraph like it or not says that the old ones are in some sense better than the new ones. It ends with “But once you don’t believe that, would it be ethical [to raise a child that way]”. It’s apparently more ethical to raise a child that way if you sincerely believe that you’re doing good. That was the point of the manslaughter / murder, doctors doing operations that they falsely believe are needed analogies.

But that is the wrong direction. Raising a child that way *always* was wrong, and doing it sincerely is if anything even worse than doing it insincerely, because an impression of sincerity assists in social control. The solution for Dreher et al is not to make themselves a sheltered refuge in which they can recover sincere belief in how horrible gay people are, and go back to crippling their kids in good conscience. The solution is for them to pass through their cognitive dissonance, and since they aren’t going to do that, really the solution is for the natural processes of time to make them and all their ideals pass away.

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Jerry Vinokurov 04.10.15 at 5:02 pm

It’s important and useful to develop compassion for our adversaries. What makes them tick? What is the appeal of orthodoxy?

It should be noted that answering either of these two questions doesn’t actually require any compassion. Anyway, compassion, like everything else, is context-sensitive: I can have compassion for the same person if they’re in dire economic straits and no compassion at all for their religious discomfort.

But the chosen values need to come from somewhere.

I tend to think they come from the recognition of our shared humanity, coupled with a good dose of empathy. Coming from a millenia-old text doesn’t give religious values any priority.

It’s no good insisting that the values I can articulate through religious language “must be checked at the door”: Jesus’ recorded first public presentation was a gloss on Isaiah: “He has anointed me to proclaim good news to the poor, to set the captives free, to bring sight to the blind”. You don’t have to be religious to have those values, but those are values of religion, and I don’t see that it’s messing with the kids’ heads to teach them using that language.

You don’t have to check them at the door; you just have to be able to articulate those values in terms that are accessible to everyone. Unsurprisingly, it turns out that when it comes to things like combating poverty, people can get behind that for many different reasons, many of which have nothing to do with religion. And that’s fine; if your religion drives you to help the poor, Godspeed. If your religion demands ostracism of gay people, not so much.

Finally, a correction: those values are not values “of religion,” but rather “of a religion” or even more appropriately, “of some followers of a religion,” as they are clearly not the values of many modern-day conservatives who call themselves Christians.

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John Holbo 04.10.15 at 5:14 pm

“Raising a child that way *always* was wrong, and doing it sincerely is if anything even worse than doing it insincerely”

Your point is this, I take it, Rich: it is worse to inflict a severe injury unintentionally than to inflict a less severe injury intentionally. You are wondering why I don’t grant this self-evident truth? It’s because I don’t find it self evident. In a sense, the first thing is worse. The effect is worse. In another sense, the second thing is worse. The intent is worse. What’s wrong with saying that?

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Trader Joe 04.10.15 at 5:18 pm

“Unsurprisingly, it turns out that when it comes to things like combating poverty, people can get behind that for many different reasons, many of which have nothing to do with religion.”

True, yet any number of restaurants and coffee shops will “invite” a homeless person to take his coffee outside. They will wave their hands that its for “health reasons” but really its just that the guy looks scruffy and might smell a bit and the other patrons really don’t want that…

Such person might not be a historically discriminated minority (or they might) but I’ve not often seen objections from the assembled patrons when such person is “disinvited” from the warmth of the coffeeshop seating area.

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Rich Puchalsky 04.10.15 at 5:45 pm

JH: “In a sense, the first thing is worse. The effect is worse. In another sense, the second thing is worse. The intent is worse. What’s wrong with saying that?”

Effects are measurable, intent isn’t, and this is a public policy discussion. We do treat intent as a factor in criminal cases, but as I understand it this is mainly “intent” as a shorthand for observable behavior, e.g. did the killer spend time beforehand planning the killing, or did they do it impulsively? Did the doctor follow accepted medical practices when they judged that the tumor needed to be surgically removed, or did they operate without regard to proper safety procedures and permissions?

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js. 04.10.15 at 5:46 pm

it is worse to inflict a severe injury unintentionally than to inflict a less severe injury intentionally.

It’s a bit like when Aristotle puzzles over whether really the incontinent man is worse—because he knows what’s right *and still* goes against it—or whether the indulgent man is worse—because he *doesn’t even know* what’s right (even tho lots of people around him might). I believe Aristotle concludes that the incontinent man is less bad because it is more easily possible for him to be moved by what’s right. Mutatis mutandis.

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mattski 04.10.15 at 6:12 pm

Marshall

But the chosen values need to come from somewhere. It’s no good insisting that the values I can articulate through religious language “must be checked at the door”

I was talking specifically about the public sphere, the place where people of different cultures and traditions interact. And I suggested that it was “religious idiosyncrasies” that probably ought to be held in check in this arena.

If you insist on imposing religious discrimination on people in public life then, if you’re consistent (if you’re willing to reciprocate the respect you’re demanding) you must be willing to suffer the various discriminations that other groups wish to inflict on you.

‘The chosen values need to come from somewhere.’

They are taught by parents, friends, the community at large. And they are taught by experience. “That which is hateful to you, do not do to others,” is a moral teaching AND an hypothesis that can be tested by any person any time they wish to practice it.

Jerry,

It should be noted that answering either of these two questions doesn’t actually require any compassion.

I would tend to disagree. Compassion increases ones ability to put oneself in the shoes of others. We can’t understand people’s behavior without seeing the world through their eyes.

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Rich Puchalsky 04.10.15 at 6:28 pm

mattski: “If you insist on imposing religious discrimination on people in public life then, if you’re consistent (if you’re willing to reciprocate the respect you’re demanding) you must be willing to suffer the various discriminations that other groups wish to inflict on you.”

No, this isn’t a good test. If you have a county with 95% Christians and 5% other, it’s not OK to say that the Christians can religiously discriminate as long as they accept the reverse discrimination by the 5%.

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mattski 04.10.15 at 6:42 pm

Rich,

I think the purpose of my test is to show that in a multi-cultural society the public sphere should be a ‘neutral’ space. Because it isn’t workable or desirable to have specific groups imposing assorted forms of disrespect on other specific groups based upon religious/cultural differences.

The case you cite is a) fairly hopeless for the 5% no matter what and b) fortunately not applicable to most modern industrial societies.

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Sebastian H 04.10.15 at 7:04 pm

“Just for the record: I think it would be nice, and probably ok, if bakers could refuse to bake cakes for people they despise. Or at least refuse to have to write messages on them that they despise. I think Democrat videographers should be able to refuse to video a Republican rally, if they prefer not. And vice versa. A Jewish printer shouldn’t have to print up 500 posters for the KKK rally. That would be nice.”

Yes. That would be nice. And it would also have been the state of the law until about 2005-2010 or so depending on what state you lived in.

“And if we decide to go this way – i.e. allowing business to deny service if there aren’t really serious, pressing, systematic Jim Crow worries – we should at least have the decency not to feign that there is something weird about members of a historically despised and oppressed minority group getting riled up about people denying them service.”

I’m sure we can dredge up someone on the internet who feigns that, but for the most part don’t people think that it is ok and normal if minority groups get pissed at someone who publicly denies them service? If a baker doesn’t want to make cakes for gay weddings, I’m certainly ok with gay people pointing that out to the public. I’m ok with picketing if they want (I’m very close to a free speech absolutist, especially about true things). They spend lots of time trying to make us gay people feel bad about ourselves. I won’t shed even half a tear if they get pointed out as being bad people.

There used to be a saying “let’s not make a federal case of this”. If someone doesn’t want to provide their services for my wedding, let’s not make a federal case of it. Let them make a federal case out of trying to stop me from telling everyone that they are bigots.

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MPAVictoria 04.10.15 at 7:27 pm

“I’m sure we can dredge up someone on the internet who feigns that, but for the most part don’t people think that it is ok and normal if minority groups get pissed at someone who publicly denies them service?”

I am not so sure. Check out Redstate on this topic if you are curious. Tons of people their who think it is the height of oppression for people to take issue with a pizza restaurant refusing to cater a wedding.

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Rich Puchalsky 04.10.15 at 8:35 pm

mattski: “The case you cite is a) fairly hopeless for the 5% no matter what and b) fortunately not applicable to most modern industrial societies.”

What?

Look, you know that I’m an American Jew, right? 1.4% of the population here are. Your view of a compassionate new step forwards is to tell people that it’s hopeless and / or not applicable? Why is this an advantage over, say, the reading of pretty much settled Bill of Rights law that I’d get from any competent constitutional lawyer, which says that no, Christians don’t get to discriminate in the public sphere in most important ways?

I remember that just 15 years a prominent Christian leader announced that the Antichrist was a living Jewish male. Since I was one of about 6 million candidates worldwide (a nice round number) I studied up for it a bit, but even though I memorized all the Apocamon I don’t think I got this important position.

(No, I didn’t really memorize all the Apocamon).

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Consumatopia 04.10.15 at 9:06 pm

“Perhaps religious freedom is the wrong grounds to use, but why should the baker be compelled to provide a service he’d prefer not to provide? “

Wrong question. The right question is, if we have anti-discrimination legislation in place, why should bakers be exempt from it? We aren’t deciding these things on a case by case basis, we’re making laws specifying general rules to be followed in a wide variety of cases. Granting an exception to the baker could open loopholes that would enable more harmful kinds of discrimination.

So if you want to open an exception in this case, you need to specify exactly what this exception would be. Thus far we’ve heard that religious people should be exempt from anti-discrimination laws, or that we shouldn’t ban LGBT discrimination the same way that we ban racial or gender discrimination. It shouldn’t be hard to see why we find those unacceptable–they would extend way beyond the case of bakers or photographers.

There are some others that are possibly acceptable. Perhaps we could limit anti-discrimination to more “important” categories like housing, employment and public accommodations. Which means we would be constantly fighting, from now until the end of civilization, over which businesses offer services worth regulating. Or maybe some kinds of businesses involve more speech and expression than others and shouldn’t be covered by anti-discrimination rules. And, again, we’ll have to constantly fight over which businesses are sufficiently “speech-y” to discriminate. Particularly if that set has to include bakers, which is already a stretch. In any event, I’m not sure there’s much point in discussing this class of possibly-okay exceptions whenever the actual legislative proposals we see all fit into the definitely-not-okay class.

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Asteele 04.10.15 at 10:23 pm

153: I always find that the weirdest objection, because their is an obvious answer. Anti discrimination laws cover sexual orientation but not political belief.

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Bruce Wilder 04.10.15 at 10:24 pm

Jerry Vinokurov: . . . liberals are not prepared, for whatever reason, to view liberalism as an actual positive creed. We talk a lot about relatively abstract concepts like autonomy and conscience and so on, but what we don’t talk about is the fact that liberal societies fundamentally hold autonomy to be a good thing, in theory if not always in practice.

Dreher: “There are a lot of conservatives who are very chest-thumping pro-America, but there’s an argument that the seeds of this are built into American individualism,” Kingsfield said. “We Christians have to understand where our allegiances really must to lie. The public schools were meant to make good citizens of us and now are being used to make good Moralistic Therapeutic Deists of us.”

Carl von Clausewitz’s policy analysis of the war isn’t going to tell you much about the character of the fight, or how a grunt soldier experienced the “tactics” of a battlefield skirmish. geo’s plaintive cry, “Do they really believe — or even understand — their own theology?” may well apply as appropriately to the foot soldiers of liberalism as to the foot soldiers of any xian sect. And, the answer will be the same: “no”.

The political fights over “gay rights” and “gay marriage” are in an important sense the latest campaigns in the Sexual Revolution, which took place in the U.S. over the twenty-five year period centered around 1967. That’s when the cultural and legal regime that governed sexuality underwent a profound shift in its default configuration, from an authoritarian model, in which all sexual behavior was licensed and regulated by the state-and-church, to a liberal model, in which all sexual behavior was an autonomous choice, regulated by free contracting between individuals (“consenting adults” etc). The moral props to that ancien regime were not primarily rational or rationalized; it made extensive use of taboo and notions of purity, to police the boundaries. Victorian standards of propriety concerning what was “shocking” played a part in supporting not just censorship of literature, but prohibitions on contraception and inhibitions on “extra-marital” relations. The use of rituals of shame and humiliation played a large part in enforcing the regime, and causing its imperatives to be internalized by individuals.

It does appear to me that the Right on these issues is seeking for some place of traction, where it can again begin shaming and humiliating people for their sexual choices. That might be late-term abortion; it might be cakes and pizzas (!) for gay weddings. And, if it cannot be done in the broad “over”culture, then the question is, how can it be done — the Benedict Option — in subcultures?

Dreher is not arguing against autonomy, per se, as a philosophical concept or proposition; he’s arguing for making a space for creating taboos thru shaming and humiliation, or failing that, for creating subcultures that serve as a cultural refuge — even if it is only a refuge of the mind, where the “christian” pizza proprietor “courageously” stands on her principles. His reactionary’s commitment to hierarchy and moral convention isn’t at bottom, a rational philosophical concept, and he’s not offering it for debate; his commitment to faith is, itself, a rejection of autonomous critical thought as well as autonomy. What he’s exposing to discussion is tactical: in telling the exemplary tale, who is to be the hero, who is to be the goat, and why.

On the other side — the liberal side, my side — I’m not sure that the rationalized philosophy of autonomy has won many converts with abstractions. I’m not sure how to “explain” the Sexual Revolution or its political aftermath. I think it may have been as radical and dramatic, because of the effects of the Great Depression and World War II pressing down, and the post-war rebound, as increased economic security and the erosion of conformity worked their magic. “Freedom” as a concept of ordered liberty probably had less to do with it than the experiential freedom of a Ford Mustang and a decent job in an increasingly urbanized culture.

I might venture one uncomfortable hypothesis: that the mega-Rich by 1970 saw that the ancient practice of divisa et impera had backfired in the New Deal coalition. The balkanized American society, ruled by a WASP ascendancy, which had prevailed through the Progressive Era, had run aground by 1930, and the highly organized subcultures could make their case against oppressions and discrimination and prejudice. Yielding on social issues could take away the organizing traction on economic ones.

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Rich Puchalsky 04.10.15 at 10:48 pm

Asteele: “Anti discrimination laws cover sexual orientation but not political belief.”

Well, 22 U.S. states have anti-discrimination laws that cover sexual orientation. The rest don’t. In 2011/2012 the EEOC ruled that job discrimination by sexual orientation was a form of sex discrimination and thus was prohibited. But the basic categories that I know about (I’m not a lawyer) are race, color, religion, sex, or national origin (via Civil Rights Act of 1964), age (1967), and disability (ADA, 1990). The Civil Rights Act of 1964 and the ADA both cover places of public accommodation.

So, no states will prohibit you from turning people away from your business because of political affiliation, some states will prohibit you from turning away people because of their sexual orientation, and all states prohibit you from turning away people on the basis of race, color, religion, sex, national origin, or disability.

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parse 04.10.15 at 10:50 pm

The political fights over “gay rights” and “gay marriage” are in an important sense the latest campaigns in the Sexual Revolution, which took place in the U.S. over the twenty-five year period centered around 1967. That’s when the cultural and legal regime that governed sexuality underwent a profound shift in its default configuration, from an authoritarian model, in which all sexual behavior was licensed and regulated by the state-and-church, to a liberal model, in which all sexual behavior was an autonomous choice, regulated by free contracting between individuals (“consenting adults” etc).

The political fight over “gay marriage” looks to me like liberals joining the conservative side of the revolution rather than the radical, trying to establish a norm where gays accept standards of propriety that aren’t quite Victorian but are certainly bourgeois. Conservatives don’t like it, and there are some gay folks who don’t like it either.

Bruce Benderson saw it happening twenty years ago.

The people of the Left have budged during one generation. They have turned a nationwide movement for equal rights that made great strides in the sixties into a covert class agenda. Today their discussions are likely to employ the nuclear-family rhetoric of this class. Their politics have been loaded with the psychic markers of a certain life style: polite euphemisms, nostalgia for rural space, emphasis on Victorian ideas of child protection, reliance on grievance committees and other forms of surveillance, and an unacknowledged squeamishness about the Other. . .

The middle classes of the Left and the Right have conspired to strangle libido, aestheticism, and lower class expression. Because political correctness neglects the embarrassing subject of class, it has been able to become the voice of one ruling class — the homogenized suburban bourgeoisie.

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parse 04.10.15 at 10:52 pm

That last paragraph should have in italicized as well. It’s all from Benderson’s Towards the New Degeneracy

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mattski 04.10.15 at 11:32 pm

Look, you know that I’m an American Jew, right? 1.4% of the population here are. Your view of a compassionate new step forwards is to tell people that it’s hopeless and / or not applicable?

Rich, you have a talent for creating controversy! Not anything the Jewish culture is known for really… (I wish I had the opportunity to quaff a beverage with you so that I’d have an improved handle on your sense of humor.)

Anyway, NO, my offhand response to your hypothetical IS NOT my blueprint for political action looking forward. To be clear, I took your 95% Christian vs 5% minority as essentially monolithic blocks intended as a counter example to my sketch of various competing cultural/religious groups. I am all for settled Bill of Rights law as you probably suspected anyway.

I do think it is interesting how dynamic religious affiliation in America is. I think that is actually a healthy and hopeful sign for the future. And I’ll grant you that there are some people with frightening religious beliefs… But I don’t think their numbers are that significant. And many such groups are at odds with each other and thus tend to offset each other. Clearly, there is significant homophobia in our culture and this is worth discussing. JH here is observing, accurately I think, that this is a battle the religious right is losing. And that is a major cause of their querulous insecurity.

Hey, thanks for the Apocamon. I have to say it’s pretty well done. I’m glad you didn’t memorize it. You might find something of an antidote to these apocalyptic visions in the so-called god-damn particle.

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Abbe Faria 04.10.15 at 11:57 pm

I think it’s very difficult for anyone to sustain their views given what we know about the history of sexuality. In just over a century we’re had the invention of homosexuality as an illness, the invention of gayness as

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Rich Puchalsky 04.11.15 at 12:01 am

mattski: ” To be clear, I took your 95% Christian vs 5% minority as essentially monolithic blocks intended as a counter example to my sketch of various competing cultural/religious groups.”

But it was a counterexample based on real percentages. If you’re talking about religion in the public sphere, you’re talking, say, about Nativity scenes during Christmas. Look at the Pew poll that you linked to and add up “Other”, and you get about 5%. (I’d include Mormons in this Othered category for some purposes but not for others, so it might be a couple of percentage points higher.) Another 15% or so is unaffiliated, but that primarily means that they don’t care. So when the perennial question goes up “Why can’t we have a Nativity scene on the Town Hall lawn?” it really is something like 95% vs 5%.

What’s another similar percentage? According to a Williams Institute review in 2011, 3.8% of American adults identify as LGBT.

So compassion has nothing to do with this. Mainstream bigots really are horrible people: they are stopped by laws and by what amounts to left-liberal political victory within this particular sphere. The check on religious discrimination in the public sphere is not that the 5% will then feel free to discriminate in turn: that wouldn’t do anything.

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Abbe Faria 04.11.15 at 12:02 am

Whoops…

gayness as an anti-marriage and monogamous subculture, and now the normalisation of gay marriage as a parallel of straight mariage. Sexuality is going to keep on shifting. I’m just not sure the idea that there are gay children who religion oppresses is anything but a very shortlived cultural view.

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Sebastian H 04.11.15 at 12:03 am

I understand anti-discrimination laws in housing, policing, hospitals, and employment. I’m not sure I understand them in selling non-crucial services, especially non-crucial personal services. Again, do we really have to make a federal case out of it?

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Rich Puchalsky 04.11.15 at 12:05 am

Sebastian H: “Again, do we really have to make a federal case out of it?”

Do you come from the U.S., and have you studied the relevant history at all? Hint: the law about public provision was passed in 1964.

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Vasilis Vassalos 04.11.15 at 12:18 am

Sebastian H: See comment 170

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Sebastian H 04.11.15 at 12:38 am

170 doesn’t answer the question of why we need such very broad anti-discrimination laws.

We have broad anti-discrimination laws over housing and hotels because shelter is a very critical area in your life.

We have broad anti-discrimination laws over employment, because not being able to find or maintain employment is devastating.

We have broad anti-discrimination laws over medical care because you could die.

I get those.

I don’t understand why we ought to have those in the rest of the services world. If you don’t want to be my personal assistant because you don’t approve of gay people, great, I probably don’t want you either. If you don’t want to be my personal trainer because I fuck men, I’ll find someone else.

I fully understand that in some states we have in fact extended anti-discrimination law that far. I don’t understand why we think it is a good idea. At some point forcing resentful whiners to do personal services for people they hate may not be worth it. I understand why we do it in really important cases. What isn’t clear to me is why you automatically assume that every case is a really important case. Or maybe you’re assuming that justifications for important cases automatically translate into justifications for unimportant cases. I don’t get it either way.

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Cranky Observer 04.11.15 at 12:38 am

= = = Sebastian H 04.11.15 at 12:03 am
I understand anti-discrimination laws in housing, policing, hospitals, and employment. I’m not sure I understand them in selling non-crucial services, especially non-crucial personal services. Again, do we really have to make a federal case out of it? = = =

And while we’re at it, would could title the legislative acts that allow businesses on the public square to discriminate at will Sundown Laws. I foresee no problems.

http://en.wikipedia.org/wiki/Sundown_town

Oh wait, maybe problems. In the northeast US it may very well be that this issue is not only not very important but not even noticed – there are always 5-10 choices for any service you need within a 20 minute drive. In the Midwest and esp the Great Plains, not so much.

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John Holbo 04.11.15 at 1:10 am

Rich: “Effects are measurable, intent isn’t, and this is a public policy discussion.”

This is patently not a public policy discussion. Would you say that my post was ONLY about public policy? Surely not. We are discussing ethics, the Constitution, law, values, public policy, what is normal, religion, cultural change. A couple other things. Also, it’s not the case that intent never matters in public policy either. Also, even if it were the case that we were talking about a public policy case in which only effects matters, and intent is not considered, that would still be no excuse to insist on your favored brand of ‘worse’ talk. We should just say: since we aren’t considering intent, we are tabling any judgments about which actors are ‘worse’. We are only worried about how to get good consequences overall. Something mechanical and non-judgmental like that.

Sebastian: “I’m sure we can dredge up someone on the internet who feigns that, but for the most part don’t people think that it is ok and normal if minority groups get pissed at someone who publicly denies them service?”

I think a crucial part of the current dispute environment is the sense, on the right, that Christians need to have the right to despise gay people, by not selling them the cake, while at the time being righteously insulated from any cultural blowback, in the form of being despised right back. Religious liberty means not just toleration but the demand for a stronger sort of cultural respect. There needs to be something automatically good and respectable about not baking that cake, if there is a religious reason for it. I don’t think this makes any sense, and it isn’t clearly articulated, but the contours of the debate make little sense unless we imagine that almost everyone on the ‘religious liberty’ side is feeling this way. ‘And if I were to despise them for getting gay married, and exercise my right to say so, I would be the one who ended up being despised as some flyover country homophobic yokel! And I would have to hear about it. No. I won’t stand for it! Religious liberty! I may despise them! But everyone has to respect me!’

I don’t think this mix of attitudes makes sense but I think it is rather pervasive, unfortunately.

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John Holbo 04.11.15 at 1:32 am

I am generally ok with the principle that at-will refusal of service is ok so long as there are no real, systematic Jim Crow-type concerns. But that’s a hard rule to operationalize, even though it truly is a good principle (I think). We are going to be looking at some kind of judicial balancing test, and we don’t want to ask judges to be amateur sociologists, just sort of eyeballing how ‘Jim Crowish’ the service sector looks, in terms of pervasive denials, or lack thereof.

Here is a decent, albeit imperfect legal heuristic for enforcing the principled concern about Jim Crow conditions: you aren’t allowed to discriminate against someone merely because they are a member of a historically/culturally/socially oppressed and despise minority group and if your act of discrimination looks to be more or less same-old, same-old with regard to all that. If we adopt this rule we are, admittedly, going to sweep up a couple eccentrics who are just very, very literal readers of Leviticus. But for the most part the results will be ok and won’t get too out of hand. If someone can really establish that they are purely religiously motivated; if they aren’t just vaguely, culturally anti-gay … well, give them a pass. If you are a truly literal reader of Leviticus, living all that out on a day-to-day basis, there is going to be a paper-trail to that effect in your behavior. I would definitely be in favor of allowing a baker who refuses to serve divorced people to refuse to serve gay people as well, even though gay people are historically oppressed and divorced people are not. I think that would be entirely the right result, since it would accommodate a clearly sincere case of religious conscience and be really harmless to others. There are just never going to be enough Leviticus literalists to generate serious Jim Crow concerns. One of the big problems in this area is that, frankly, it’s psychologically incredible to suppose that such homophobia as people currently exhibit towards gay people is caused by reading Leviticus, rather than just taking in homophobic culture by osmosis.

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bianca steele 04.11.15 at 1:44 am

Rich,

Nativity scenes? That is so 1990s. These days the Lubavitch put up a menorah and everyone’s happy.

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mattski 04.11.15 at 1:55 am

So when the perennial question goes up “Why can’t we have a Nativity scene on the Town Hall lawn?” it really is something like 95% vs 5%.

No it isn’t. “Christians” are not a monolithic group in America today. They don’t all have the same desire for public displays of their tradition. They don’t all have the same attitudes towards gay marriage. And the percentage of non-Christians is closer to 20-22%.

But the Nativity scene is a good example because it’s probably less offensive than refusal of services to gays. And it’s a tough question. There are going to be gray areas. But when you say ‘compassion has nothing to do with this,’ I think you’re just showing your bias towards judgement and confrontation. That’s the locus of your skill set. I’m saying, broaden your skill set.

Compassion has everything to do with making the world a better place.

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John Holbo 04.11.15 at 2:05 am

Abbe Faria: “I’m just not sure the idea that there are gay children who religion oppresses is anything but a very shortlived cultural view.”

I’m fine with this as long as we add that it may be a very shortlived cultural view only because it turns out to be a shortlived problem, culturally. That is, it gets solved in short order to the point where it is not a systematic problem any more. Optimistic, but not crazy.

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bianca steele 04.11.15 at 2:17 am

Sebastian H @ 183 assumes the predominant reaction will be angry resentment. But if there’s a large number of people who will weigh pressure to shame people they’re supposed to see as sinful against countervailing pressures, the effect of the law would be otherwise. And every time the law is defeated, people who think that way may actually feel less countervailing pressure than before.

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Consumatopia 04.11.15 at 2:20 am

170 doesn’t answer the question of why we need such very broad anti-discrimination laws.

170 wasn’t trying to answer the question of what kinds of activity anti-discrimination legislation should cover, because of what Rich said–we have had anti-discrimination laws covering public accommodations much broader than what you’re talking about at the federal level for more than five decades. It might already violate federal law for a baker to refuse to cater a wedding because it was interracial, though I have no idea whether that has been tested.

What’s up for national political debate now is whether anti-discrimination laws be cover LGBT, and whether religious believers should be able to claim exemption from anti-discrimination laws. So far as I can see, there isn’t any movement to push legislation that would narrow that in the way you’re asking for–nobody is out there demanding the right of wedding service providers to racially discriminate.

I admit, I don’t have a firm opinion on exactly what kinds of business I think the ideal anti-discrimination laws would cover. But I don’t really see the point of revising the law to permit more kinds of “harmless” discrimination. Once we’ve decided that it’s okay for us to require hotel managers not to discriminate, why is it so unacceptable to make the same requirement of bakers?

When a law is already on the books, it’s up to the people asking for exceptions to specify exactly what those exceptions should be and make a case for them. It’s not up to those of us who want the law to be enforced uniformly to argue for uniformity.

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John Holbo 04.11.15 at 2:41 am

“I admit, I don’t have a firm opinion on exactly what kinds of business I think the ideal anti-discrimination laws would cover. But I don’t really see the point of revising the law to permit more kinds of “harmless” discrimination. Once we’ve decided that it’s okay for us to require hotel managers not to discriminate, why is it so unacceptable to make the same requirement of bakers?”

It’s pretty easy to come up with sympathetic cases. Should a black print shop owner be required to print up 5000 sheets for the KKK rally? Should a Jewish deli be required to cater sandwiches for the neo-Nazis? Should a videographer who offers ‘event’ rates be required to shoot a porn film if that makes her uncomfortable? Should a baker named John Smith be required to bake a cake for that guy who has always hated him, and write ‘John Smith is an asshole’ in icing on top? Should a wedding photographer be required to shoot the pagan nude wedding that is to be followed by the mass orgy involving all the participants? I’m getting silly now, of course. But obviously our feeling is: it would be nice if people could opt out of providing these services, if participating really really bothered them. As it well might. if we could allow an opt out, that would be optimal.

That said, you are right about this: “Once we’ve decided that it’s okay for us to require hotel managers not to discriminate, why is it so unacceptable to make the same requirement of bakers?” If you see the sense of the hotel rule, surely the worst you could say about the baker rule is that it seems a bit of overreach. You should feel about it the way you feel about some over-restrictive zoning regulation: I know why you did this, but you didn’t actually strike the balance right (fill in the details to suit personal taste in zoning rules). If you see the sense of the hotel rule, but you get up on your religious liberty high horse over the baker rule, you are confused.

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Rich Puchalsky 04.11.15 at 3:25 am

If you want to say that this isn’t a public policy discussion, then you get to detach yourself from actual history.

“Should a black print shop owner be required to print up 5000 sheets for the KKK rally?”

There is no anti-discrimination law in America that covers political belief. No one can be required to print up sheets for a KKK rally. Same with neo-Nazis.

“Should a baker named John Smith be required to bake a cake for that guy who has always hated him, and write ‘John Smith is an asshole’ in icing on top?”

There’s an actual case in which a baker refused service to someone who wanted a cake with anti-gay Bible verses written on it. A court ruled that “this was not [religious] discrimination because the baker had a consistent policy of refusing to create cakes that used derogatory language or imagery.” (From here). The same would presumably cover the videographer or photographer if they had a policy of refusing to take nude pictures.

These examples are silly, but they are silly because they have actual answers but you don’t seem to want to know them.

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John Holbo 04.11.15 at 3:48 am

“If you want to say that this isn’t a public policy discussion, then you get to detach yourself from actual history.”

Rich, if you want to say this has been a pure public policy discussion, then you get to detach yourself from 90% of this post and thread. We have been debating liberalism and ethics … and public policy, yes. If you won’t settle for the discussion being only partly about public policy, I don’t know what to say. You can go sit in the pumpkin patch, using/abusing the phrase ‘most sincere’ to your heart’s content, perhaps.

I am aware of these cases you raise and I am, implicitly, responding to them. That you are not interested in my responses, insofar as they interfere with your evident, antecedent determination to hallucinate that my position is pure sincerity-centric public policy, is no concern of mine. I am aware of the recent anti-gay Bible verses case and have dealt with it by saying: optimally, anyone who can establish a track record of following various likely rules will be able to establish that they aren’t just indulging animus against a despised and oppressed minority. I am not saying this is what the law actually says. I am aware that just suggesting something down deep in a CT comment threat doesn’t make it the rule of the land. I am aware of the is/ought distinction, where the law is concerned. And where public policy is concerned!

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John Holbo 04.11.15 at 3:55 am

“There is no anti-discrimination law in America that covers political belief. No one can be required to print up sheets for a KKK rally. Same with neo-Nazis.”

OK, I’m going to try once more. Of course there is no such law! The question is whether, IF there should be a law requiring bakers to serve gay-marriage wedding cakes, consistency requires that we say there should ALSO be a law, requiring Jewish and black printers to print up sheets for a KKK/neo-Nazi rally, on commercial request. We are, in effect, contemplating a new, expansive ‘public carrier’ legal regime in which businesses can never refuse customer service, just because they find the form of custom morally unsavory. The idea is that, if we don’t like to contemplate forcing Jews and blacks to print up KKK material, maybe should shouldn’t pass any laws that would, consistently, require that, potentially. So maybe we should decide that, even if we don’t like the baker refusing the gay-marriage cake, we should lump it on that front, to avoid the undesired implication on the KKK front. Clear?

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Rich Puchalsky 04.11.15 at 4:24 am

JH: “The question is whether, IF there should be a law requiring bakers to serve gay-marriage wedding cakes, consistency requires that we say there should ALSO be a law, requiring Jewish and black printers to print up sheets for a KKK/neo-Nazi rally, on commercial request.”

This is a bad kind of intuition pumping. You want us to have reactions to words like “KKK” and “neo-Nazi” that are based on history. But we can’t refer to things like “protected classes” — products of that same history — to explain exactly why consistency does not mean that a baker serving gay-marriage wedding cakes is not the same situation as a printer printing up KKK flyers. IF there should be law requiring bakers to serve gay-marriage wedding cakes, in America, then it will use the same framework that came out of 1964, which of course came out of Jim Crow, and in which it was obvious that e.g. florists refusing to serve black people was intended to shame them and drive them away.

There is no “new, expansive ‘public carrier’ legal regime” that anyone is contemplating in the actual world that you are using as a frame for this story — the world that Dreher is supposedly writing about. Instead, there are anti-discrimination laws. If you want an abstract ethical story, you should at least make it about unicorns and greebles. Then I won’t have this feeling that I’m supposed to know something about this story from growing up Jewish in America.

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John Holbo 04.11.15 at 4:52 am

“This is a bad kind of intuition pumping.”

I was asking a legal question. I’m not asking you to report your feelings. I want to understand what a legal rule would imply.

“There is no “new, expansive ‘public carrier’ legal regime””

If you don’t get the is/ought distinction, I can’t help you, Rich. It’s basic.

“But we can’t refer to things like “protected classes” — products of that same history — to explain exactly why consistency does not mean that a baker serving gay-marriage wedding cakes is not the same situation as a printer printing up KKK flyers.”

Why can’t we do this? What is your objection to doing so? You seem to be, first, requiring history and now forbidding its introduction into the discussion. Which is it? If you are requiring that all this be ONLY public policy, but with no historical component, then it looks to me like you are doing public policy for unicorns and greebles on the grounds that nothing else would connect with your Jewish roots. Where’s the sense in that? What are you saying?

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Sebastian H 04.11.15 at 5:02 am

“Once we’ve decided that it’s okay for us to require hotel managers not to discriminate, why is it so unacceptable to make the same requirement of bakers? “

Because the requirement for hotel managers was made with a much more limited rationale than “nobody should ever discriminate against anything”. Heart of Atlanta Hotel v. U.S. was largely about how important interstate movement, shelter and, housing were , and how tied up they were with the racial animus and Jim Crow.

And you seem to be suggesting that I’m saying it would be unconstitutional to make such laws. I’m merely saying that it is stupid overreach. I’m saying that it is neither good nor desirable to pretend that “non-discrimination in everything” is the most important goal.

You all clearly don’t believe it is, as we can see through discussions of affirmative action.

When it is important, outlaw it. When it isn’t, don’t be such an ass. Look, I’m gay, I’ve been hurt by people not be accepting of that. I had parents that wanted me to go to one of those crazy re-programming ministries when I came out to them. I’ve was chased down the street by thugs who wanted to beat the crap out of me and maybe kill me in the 90s. I’m very sensitive to the idea that it can be a problem when people don’t like gay people. I don’t want people to be fired for being gay, beat up for being gay, killed for being gay, medically untreated for being gay, or unable to find food and shelter for being gay. But when I first heard about the photography case I thought “Quit being such a drama queen and just get someone who isn’t going to fuck up your pictures.”

Some things are worth fighting for, others aren’t. The Indiana law is bad because it opens up the areas which clearly should be protected. But it only got anywhere because of the completely stupid photography case. How about we don’t do stupid overreach and fight over the real cases?

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Sebastian H 04.11.15 at 5:04 am

“There is no “new, expansive ‘public carrier’ legal regime”

This is legally wrong. The public carrier legal regime absolutely didn’t cover all commerce. To the extent that you think current laws do/should cover all commerce it has nothing to do with the public carrier legal regime.

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John Holbo 04.11.15 at 5:09 am

“I’m merely saying that it is stupid overreach. I’m saying that it is neither good nor desirable to pretend that “non-discrimination in everything” is the most important goal.

You all clearly don’t believe it is, as we can see through discussions of affirmative action. “

Well, obviously I’m saying precisely that if you think it’s stupid overreach, that’s fine. Not that it’s not fine.

““There is no “new, expansive ‘public carrier’ legal regime” This is legally wrong. The public carrier legal regime absolutely didn’t cover all commerce. “

Obviously when I say that there is no public carrier legal regime that covers all commerce, like that, I mean precisely – as you say – that the public carrier legal regime doesn’t cover all commerce like that. That is, what I say is legally right, not wrong.

What is this? Opposite day?

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Sebastian H 04.11.15 at 5:19 am

John, I know I usually disagree with you, so it is confusing. But in this case I’m agreeing with you and disagreeing with Rich and Consumatopia and others. I think you pretty much have the right of it here.

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John Holbo 04.11.15 at 5:28 am

Alright then!

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Consumatopia 04.11.15 at 5:47 am

Because the requirement for hotel managers was made with a much more limited rationale than “nobody should ever discriminate against anything”.

I don’t think anybody is saying “nobody should ever discriminate against anything”. I’m pretty sure I never said that.

“And you seem to be suggesting that I’m saying it would be unconstitutional to make such laws.”

I have no idea where you’re getting that.

“This is legally wrong”

No. The Civil Rights Act of 1964 did not just limit itself to ” interstate movement, shelter and, housing”. The only “new, expansive ‘public carrier’ legal regime” is that some of us want to start applying the old regime to sexual orientation as well as race/gender/religion/etc. Does it apply to bakers? I’m not sure what courts would have to say about a racist bakery, but the 1964 law definitely goes much further than the very narrow laws you imagined at 183. “Public accommodations” is a very broad notion.

“When it is important, outlaw it. When it isn’t, don’t be such an ass.”

We should pass laws to ban important offenses. But once they are passed they should be enforced uniformly, not just in “important” instances.

“The Indiana law is bad because it opens up the areas which clearly should be protected. But it only got anywhere because of the completely stupid photography case.”

1. There is currently no LGBT anti-discrimination law in Indiana. Forcing public fights on these fronts probably increases the chances that will change–both at the national and state levels.
2. These fights were going to happen anyway because the right has decided they’re going to push disingenuous Hobby Lobby crap as far as they can, just for the sake of undermining the regulatory system.
3. If there’s a law on the books and the photographer violated it, then there’s nothing wrong with suing them. You act as though the rest of us are proposing new laws specifically to cover bakers and photographers.

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Consumatopia 04.11.15 at 6:09 am

“We are, in effect, contemplating a new, expansive ‘public carrier’ legal regime in which businesses can never refuse customer service, just because they find the form of custom morally unsavory.”

Maybe this is my fault? Did my post @191 convey the impression that I was proposing such a thing? I should clarify, when I said “I don’t really see the point of revising the law to permit more kinds of ‘harmless’ discrimination.”, I was talking about revising the actual, existing law we’ve had for decades, that Sebastian H seems to be in denial over.

I even explicitly said I was (unenthusiastically) open to narrowing the kinds of activities that discrimination laws are applicable to. So as far as desired legal outcomes go, I guess I’m not actually that far from you and Sebastian. It’s just that you two seem to be under the impression that you’re arguing for the status quo, when you’re actually arguing against it?

“But obviously our feeling is: it would be nice if people could opt out of providing these services, if participating really really bothered them. “

I’m not sure this is actually the feeling behind all of those exceptions. Do we really think it would be “nice” if hotel owners could refuse to serve black guests, if we could somehow magically prevent that from inconveniencing black travelers? Anti-discrimination law isn’t just about guaranteeing access to resources and opportunities, it’s also about dignity. Why shouldn’t we be proud that hotel managers can’t discriminate against black guests?

Just because we want businesses to be able to refuse services doesn’t mean it would in any sense be nice if we let them discriminate against protected classes. That’s like arguing that freedom of speech means that it would be nice if we permitted blackmail.

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John Holbo 04.11.15 at 6:14 am

“Maybe this is my fault? Did my post @191 convey the impression that I was proposing such a thing?”

Yes, I took that to be more or less your proposal. I then pushed back on the grounds that this would probably not be optimal. Thanks you for the clarification.

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Consumatopia 04.11.15 at 6:19 am

Okay I just read this more carefully.

“We are, in effect, contemplating a new, expansive ‘public carrier’ legal regime in which businesses can never refuse customer service, just because they find the form of custom morally unsavory.”

And, yeah, Sebastian H is definitely correct that the Civil Rights Act of 1964 didn’t imply anything like that. But I can’t figure out why either of you think anybody is asking for that.

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Consumatopia 04.11.15 at 6:20 am

Okay, it sounds like this really was my fault. So I’m gonna stop talking before I make this worse and apologize for making trouble ;)

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Zora 04.11.15 at 6:26 am

No one has commented on saucer guy’s contribution. Well, I kinda like it. Except for the notion that science is going to prove the reality of enlightenment or that psychedelic drugs are an adequate route to it.

I’m a Buddhist; I see all religions as upaya, expedient means. I can read the Surat an-Nur, or Rumi, or Maimonides, or St. Teresa of Avila, or Thomas a Kempis, and say yes, that’s so. I can read George Whitefield’s account of his salvation experience and recognize it. Sure, Buddhists have been and are now violent, persecuting bigots, but that is not everyone. Nor are the bigots and extremists representative of the best of other traditions.

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John Holbo 04.11.15 at 7:06 am

“Do we really think it would be “nice” if hotel owners could refuse to serve black guests”

This is complicated, even if it seems like it should be simple. What makes it complicated is that, in a sense, it would be nice if people are allowed to be flaming assholes. Because if we pass enough laws to ensure that there is no way in which anyone can be a flaming asshole, we will have passed too many laws. That will be not-nice.

It’s not nice be a flaming asshole, but it’s not-nice if people don’t have enough freedom to be flaming assholes.

Second, dignity. I don’t think it really should be about ensuring dignity all-round. After all, it’s undignifying for a Nazi to have a Jewish printer refuse to print his propaganda. Well, screw him. He’s not entitled to the Jewish printer treating him as deserving of dignity.

I think what it really is about is ensuring no one suffers from systematic, pervasive, Jim Crow-type troubles/deprivations due to personal, permanent identity conditions. (This would take very careful refinement which I’m not going to bother to try to achieve right now. I’m sure you see where I am going: no Jim Crow!)

A good heuristic for ensuring this is to establish protected classes based on historical oppression/discrimination. I am in favor. Yet this is a heuristic only, so it would be nicer still if we could allow a few exceptions. However, I don’t think general ‘religious liberty’ will do the trick. That will let people to indulge the bad old prejudices, confabulating that they are merely very very pious readers of “Leviticus”. I call bullshit on that. But if someone could provide evidence that apparent animus against gays was motivated by a sincere, general religious conviction – let’s say, our baker also wants to refuse service to divorced people – it would be ideal if this odd gentleman could be allowed to indulge his “Leviticus” literalism in peace. Reason: seriously, there aren’t many people like this. No Jim Crow concern, then. Also, for what it’s worth, I don’t think it’s a threat to your dignity to be thwarted by such an individual. (You can commiserate with the divorcees, who are also refused service. It makes a good story!) This is really a very minor qualification to the ‘no discrimination against historically despised/oppressed groups’ rule. But it is useful to make since it clarifies the rationale for the ‘no discrimination’ rule. We are doing this to prevent Jim Crow-type problems. Period. That being the case, we may end up overreaching a bit – or underreaching a bit – in trying to strike the right balance. It’s like trying to get zoning regulations just right.

If someone like Sebastian thinks ‘seriously, there is no risk of gay people suffering pervasive Jim Crow-style oppression in 2015,’ we may dispute that factual premise but we should grant that IF this were correct, it would indeed be best not to bother with anti-discrimination legislation.

On the other hand, Sebastian should admit (does admit, I think) that if there is a serious risk of gay people suffering pervasive denials of service/accommodation, Jim Crow-style, then anti-discimination law should be passed.

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js. 04.11.15 at 7:08 am

I don’t get it. If white people ever become a persecuted minority, then laws requiring all printers to print KKK materials could be made justifiable. I mean, you can do this all in terms of oughts. The only ‘is’ you need is that white people are not a persecuted minority (neither are Christians, their fervid fantasies notwithstanding) whereas gay people are. Isn’t that what “protected classes” is about?

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js. 04.11.15 at 7:13 am

Also, I don’t particularly care about what would be “nice”. And why should I? Honestly.

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John Holbo 04.11.15 at 7:14 am

And for the sake of utter clarity as to where I stand: I believe there is sufficient risk of gays suffering serious, systematic harm, even in 2015, that on balance non-discrimination laws would be a good idea. The minor harm this does, burdening private citizens and businesses is outweighed by the good it would do, guarding against real risks. Obviously gay people in Indiana are a lot better off in 2015 than blacks were in Mississippi in 1960. So the need for protections is a lot less clear and urgent. But still real, I should think.

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John Holbo 04.11.15 at 7:22 am

“Also, I don’t particularly care about what would be “nice”. And why should I? Honestly.”

Oh, I guess I’ve just been using ‘nice’ as shorthand for ‘what sounds like a good result to you?’ It would be nice if people weren’t jerks to gays. It would be nice if Jewish guys weren’t forced to cater to the KKK. It would be nice if sincere Christians weren’t made miserable by being forced to do things that make them uncomfortable or squick them out. It would be nice if the government didn’t have to tell you who to serve and not in your private business. We can’t necessarily have all nice things, at the end of the day. But we should keep track of the implications of what we are saying, all around.

Sorry if that was confusing. The very obviousness of the fact that we aren’t just going to insist on everything ‘nice’ was supposed to indicate the tentativeness of the usage.

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Abbe Faria 04.11.15 at 8:13 am

“I’m fine with this as long as we add that it may be a very shortlived cultural view only because it turns out to be a shortlived problem, culturally. That is, it gets solved in short order to the point where it is not a systematic problem any more.”

Does enshrining it in law help? If you take the view that sexual orientation is

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Rich Puchalsky 04.11.15 at 9:52 am

When I wrote “But we can’t refer to things like “protected classes””, I wasn’t writing that we had to ignore history. (Which I think was pretty obvious in context, but I guess not.) What I was saying is that you, John Holbo, just asked a whole lot of illustrative / thought experiment questions (the printer making flyers for the KKK, the videographer for the nude wedding) that have real answers, but you don’t want us to consider the real answers. You want to talk about the abstract possibility of an expansive public carrier legal regime (based on a misreading of Consumatopia’s comment) without you considering a reply based on actual history to be good enough to settle the question. Instead, you bring up the is/ought distinction.

I hesitate to say that Dreher’s piece is more connected to reality than yours is, but he isn’t writing about how things should be, unconnected to actual history and actual current events. He is writing about his interpretation of the actual America. In that actual America, laws about discrimination in public accommodations follow the pattern set in 1964, for historical reasons. Obviously there is no abstract reason why other setups are not possible. But in reality the reasons why people are forbidden from discriminating by race, but are allowed to discriminate by political belief, are quite clear. There is no conundrum about why we actually allow printers to refuse business to the KKK, yet don’t actually allow bakers to refuse service to gay weddings (if sexual orientation is covered as a protected class).

I’ll add that bringing up is/ought is particularly pointless for this thread. Talking about “ought” is envisioning possible responses to a political conflict with no representatives of one side of the conflict present. We can just agree that bigotry ought not to exist and then the thread’s done.

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Rich Puchalsky 04.11.15 at 10:40 am

Sebastien H @ 199: “This is legally wrong. The public carrier legal regime absolutely didn’t cover all commerce. To the extent that you think current laws do/should cover all commerce it has nothing to do with the public carrier legal regime.”

In actuality, “public accommodation” is defined as “entities, both public and private, that are used by the public. Examples include retail stores, rental establishments and service establishments, as well as educational institutions, recreational facilities and service centers. Private clubs and religious institutions were exempt.” (quoting wiki). So not all commerce is included, but all retail stores are included. That includes retail florists, bakers, etc.

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John Holbo 04.11.15 at 11:05 am

“I hesitate to say that Dreher’s piece is more connected to reality than yours is …”

Well, I’m glad that there are at least a few strange things that you still hesitate before saying, Rich. I was beginning to wonder there!

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John Holbo 04.11.15 at 11:10 am

More seriously: I really don’t know how to address your points, Rich, because I honestly don’t understand what the problem is supposed to be. I get it that you think everything I say is utterly and indeed willfully blind to reality. But as criticisms go that’s a bit … broad. And my alleged motive remains a bit … obscure.

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Vasilis Vassalos 04.11.15 at 11:41 am

John Holbo: Why would you side with the people who consider overt discrimination a First Amendment/free expression issue?

There are a million ways to be a flaming asshole that don’t involve discrimination in service. Some of the jobs under discussion, probably not florist but probably baker, involve licensing. It’s not really strange or “not-nice” to have constraints placed on licensees. Performing a licensed professional service is not really protected free speech.

In any case, no, it definitely wouldn’t be nice if people were allowed to genitally mutilate their daughters just because not allowing them to makes them uncomfortable. It wouldn’t be nice if people wouldn’t be able to serve blacks because it makes them uncomfortable. It wouldn’t be nice if the government didn’t tell you whether you needed to wash your hands before handling food regardless of whether you were observing a weird religious holiday from washing.

Do you even realize that you claim here
“It would be nice if sincere Christians weren’t made miserable by being forced to do things that make them uncomfortable or squick them out. It would be nice if the government didn’t have to tell you who to serve and not in your private business ” that even really Jim Crow-ish things are “nice”, going way over even your own previous statements in this thread?

So why would anyone say that it’s “nice” to be able to be a flaming asshole in this particular way, unless one really, really wanted to give space to bigoted reactionaries?

Also, why would anyone want to further discuss and analyze a position one characterizes as “I don’t think this mix of attitudes makes sense”? You are devoting a serious amount of space to the defense of attitudes you say don’t make sense.

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John Holbo 04.11.15 at 12:02 pm

It’s nice for people to be free and freedom means being able to do some not-nice stuff. That doesn’t mean that doing not-nice stuff is nice. Does that help?

“You are devoting a serious amount of space to the defense of attitudes you say don’t make sense.”

Guilty as charged!

Also, I have a good argument for forbidding genital mutilation if you are in the market for one, and lack one of your own. I don’t think there is any danger of it being allowable just because it would be ‘nice’ if the people who want to do it get to do it. (Even though, other things being equal, satisfying your desires is ‘nice’.)

I think retiring the word ‘nice’ at this point in the discussion might be nice.

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Consumatopia 04.11.15 at 12:08 pm

“What makes it complicated is that, in a sense, it would be nice if people are allowed to be flaming assholes. Because if we pass enough laws to ensure that there is no way in which anyone can be a flaming asshole, we will have passed too many laws. That will be not-nice. “

If the issue is that we don’t want to pass too many laws, okay, I can buy that. But if we pass laws to stop seriously harmful behavior, but in the process that same law also happens to prevent flaming yet harmless assholes, that seems to me like a bonus, not a cost. I wouldn’t want to pass the law just to catch the harmless instances, but I see no reason to add complexity to the law to specifically avoid catching them.

There is a difference between saying that laws should only be passed to address serious problems, and saying that laws, once passed, should only be applied to serious instances of the problem.

“I think what it really is about is ensuring no one suffers from systematic, pervasive, Jim Crow-type troubles/deprivations due to personal, permanent identity conditions.”

It is about systemic discrimination, but minor or “harmless” instances can still contribute to systemic patterns. Because of historical context, denying services to someone because they’re a member of a protected class is a threat to their dignity–to their equal participation as members of our community–in a way that denying services to someone because they’re of the wrong political faction is not.

To put it another way, proscribing discrimination against protected classes is not just a way to limit harmful behavior, it’s also a way of telling people previously discriminated against classes of people “You don’t have to take this anymore.”

“But if someone could provide evidence that apparent animus against gays was motivated by a sincere, general religious conviction – let’s say, our baker also wants to refuse service to divorced people – it would be ideal if this odd gentleman could be allowed to indulge his “Leviticus” literalism in peace.”

To be clear, I’m not saying the law should cover all commerce, that we should require churches to stop discriminating against ministers or members (SCOTUS seems pretty clear that this would by unconstitutional), that we should require white racists to live with black roommates, and plenty of another bigotry that I guess I’m saying people should be free to indulge in peace. But once we’ve decided that a kind of discrimination should be banned, religion, even sincere religion, should not be an out. And I don’t see anything ideal about the contrary position.

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Layman 04.11.15 at 12:52 pm

‘But if someone could provide evidence that apparent animus against gays was motivated by a sincere, general religious conviction – let’s say, our baker also wants to refuse service to divorced people – it would be ideal if this odd gentleman could be allowed to indulge his “Leviticus” literalism in peace. Reason: seriously, there aren’t many people like this.’

I understand that, as a matter of law, there are some exceptions to laws based on religious conviction; but I don’t know why this is necessarily ideal. If the animus against gays was sincere and deeply held but not religious, would it still be ‘ideal’ that this odd gentlement be allowed to discriminate against them in peace? As long as we’re talking about the ideal outcome.

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Vasilis Vassalos 04.11.15 at 12:56 pm

“It’s nice for people to be free and freedom means being able to do some not-nice stuff. That doesn’t mean that doing not-nice stuff is nice. Does that help?”

I understand that is your position, but it’s not obviously true, and I would have thought it is obviously untrue for most people. I think the problem is “some not-nice stuff”. “Some” carries a lot of water in this sentence. Freedom means being able to do some not-nice stuff, but not the not-nice stuff you include. Other not-nice stuff not included in the meaning of freedom for example are beating people up, defrauding people, groping them when they don’t want to be groped, telling injurious lies about them, and a whole host of other things. I still don’t understand why you include denial of service by a professional to the “not-nice stuff” that are included in freedom. Is there a test for which “not-nice” stuff goes into freedom?

Also, this attitude in the workplace seriously oppresses workers: The boss makes the rules, and she gets to decide if the (closeted) gay employee has to turn away her gay friend for service. How’s that for nice?

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Vasilis Vassalos 04.11.15 at 1:00 pm

“But once we’ve decided that a kind of discrimination should be banned, religion, even sincere religion, should not be an out. And I don’t see anything ideal about the contrary position.”

I think John states clearly that he thinks discrimination should ideally be allowed, because to not be coerced not to discriminate is part of freedom and freedom is good. Unless of course it results in Jim Crow-ish things, somehow.

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John Holbo 04.11.15 at 1:06 pm

“prevent flaming yet harmless assholes”

Ah, I think flaming yet harmless assholes are a graceful ornament to the social order. Taken in moderation.

“I think John states clearly that he thinks discrimination should ideally be allowed, because to not be coerced not to discriminate is part of freedom and freedom is good. Unless of course it results in Jim Crow-ish things, somehow.”

Yes, that’s about right.

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Rich Puchalsky 04.11.15 at 2:10 pm

JH: “And my alleged motive remains a bit … obscure.”

Your alleged motive is that you like to explore philosophical ideas. Or that you think that following through the logical consequences of an incoherent position like Dreher’s may help to convince people like Dreher that it’s incoherent. Some mixture of those.

But when someone like Sebastian H asks, literally, why we have to make a Federal case out of a florist not serving a gay person, we should at least get the actual history involved correct before we use this situation as a platform for various thought experiments and ethical what-ifs. I think that it’s particularly bad to write things like “Wouldn’t it be good if we had a system in which a Jewish printer didn’t have to print up flyers for the KKK?” when in actual fact, in current America, we have a system in which Jewish printers do not have to print up flyers for the KKK.

In short, your proposal that people be allowed to discriminate in minor ways unless this results in Jim Crow-ish things already exists in our system, and would continue to exist even in sexual orientation became a protected class nationwide. So your continuing to go on about it as if it’s an ideal that we don’t have starts to look a whole lot like you just don’t know what you’re talking about.

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John Holbo 04.11.15 at 2:22 pm

“In short, your proposal that people be allowed to discriminate in minor ways unless this results in Jim Crow-ish things already exists in our system.”

I obviously know this.

““Wouldn’t it be good if we had a system in which a Jewish printer didn’t have to print up flyers for the KKK?” when in actual fact, in current America, we have a system in which Jewish printers do not have to print up flyers for the KKK. “

I obviously know this, too.

“… starts to look a whole lot like you just don’t know what you’re talking about.”

That’s the bit where you keep losing me, Rich.

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John Holbo 04.11.15 at 2:23 pm

Maybe this will help. In general, I am aware that the position that I think would be optimal has a lot of points of connection with the situation we have actually got. Although there are also some points of difference.

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Consumatopia 04.11.15 at 2:30 pm

I think I get it, but I don’t understand why “ideally” necessarily means “freedom” or government inaction.

Way up above I mentioned the situation of trespass up above. And employing your logic, we would say “freedom is good, and ideally people would have the freedom to cut across your lawn, but the practical consequences of that are unworkable, so we have laws against cross other people’s property without permission”. I strongly suspect that a lot of property owners would take exception to that argument–they don’t accept that their claim is merely a consequentialist one. They would say that, ideally, you would respect their private property, and if you don’t then, ideally, they have the right to eject you from it. To them, it’s not just a matter of the government protecting them from serious harm, it’s a matter of the community upholding a claim that they feel they are morally and ideally entitled to.

I see anti-discrimination laws the same way. In the past, our society mistreated people of certain classes. As one very meager form of atonement, we now give them the moral entitlement to protection from some forms of discrimination. So banning a particular form of discrimination isn’t a matter of compromising our ideals, but of upholding them.

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ZM 04.11.15 at 3:02 pm

John Holbo,

““Do we really think it would be “nice” if hotel owners could refuse to serve black guests”

This is complicated, even if it seems like it should be simple. What makes it complicated is that, in a sense, it would be nice if people are allowed to be flaming assholes. Because if we pass enough laws to ensure that there is no way in which anyone can be a flaming asshole, we will have passed too many laws. That will be not-nice…. it’s not-nice if people don’t have enough freedom to be flaming assholes.”

I kind of doubt your sincerity these claims are so outrageous. How would it be nice if racist hoteliers were able to refuse to serve black people? That is definitely not a nice thing to do at all. Hoteliers should only turn away people if they are drunk and disorderly or wearing the wrong clothes or for some other good reason. It would not be nice for the government to give hoteliers exemptions from anti-discrimination laws to allow them to turn away people because of their race or sexuality etc — that is why doing so is prohibited (except for churches, mosques etc and religious schools).

“But if someone could provide evidence that apparent animus against gays was motivated by a sincere, general religious conviction – let’s say, our baker also wants to refuse service to divorced people – it would be ideal if this odd gentleman could be allowed to indulge his “Leviticus” literalism in peace.”

This would not be ideal at all, unless you have a strange idea of what an ideal town would be like. It would end up causing lots of trouble and upset the peace. It is prohibited for good reasons. If the baker doesn’t want particular customers he can just grumble and be generally rude to them, then likely they won’t be returning, but he might lose other customers as well since everyone would think he was rude, although this might depend on how good his bread and pastries were.

“We are doing this to prevent Jim Crow-type problems. Period.”

That is not true since we have anti-discrimination laws in Australia and we didn’t have Jim Crow laws. Also there were not really Jim Crow laws for women, and anti-discrimination laws prohibit discriminating against women and other groups too.

“It would be nice if the government didn’t have to tell you who to serve and not in your private business. “

No this would not be nice that is why anti-discrimination laws apply to businesses, and most people think having anti-discrimation laws is the nice thing.

““I think John states clearly that he thinks discrimination should ideally be allowed, because to not be coerced not to discriminate is part of freedom and freedom is good. Unless of course it results in Jim Crow-ish things, somehow.”

Yes, that’s about right.”

I think you should do as bianca steele suggested earlier and write a coda with regard to what the Australian Liberal Party’s view on the issue might be — since their view is everyone should have the right to be a bigot (until public outcry made them change their minds in the short term) and you seem to have a similar sort of view that it would be nice if people could be more bigoted than laws now allow. But I think encouraging bigotry because it somehow seems nice would not be nice but just end up causing trouble and conflict.

Also freedom is not necessarily good, it depends on the matter in question. Freedom to do good things is good, freedom to do neutral things is neutral, and freedom to do harmful things is bad and should be discouraged by laws except where it is impractical like having regulations on behaviour at train stations so lengthy they include prohibitions on not throwing coins on the ground so old women’s backs ache bending down to pick them up. However as such regulations would be too lengthy you could have staff at the train station instead to angrily chase away young men who do this and other offensive behaviour that is too petty to regulate but still not good just because freedom.

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Matthias Gralle 04.11.15 at 3:10 pm

magistra’s comment at 131 is very pertinent.

The New Testament contains only accounts of people converting to Christianity as adults, with no previous exposure by family, and certainly no encouragement by the surrounding society. Once you have a second generation of Christians, it is necessary to decide if you can inherit faith.

The appearance of monastic life in the 4th century repeated this phenomenon. “De reditu suo”, written in about 410 AD by a wealthy and influential Gallo-Roman, shows intense prejudice against filthy, egocentric monks who neglect their civic duties. People became monks very much against the wishes of their families and surrounding society. Of course, nobody inherits a monastical life-style, which is the whole point of celibacy. Therefore, it is very strange to call it “Benedictine option” when parents force their children to live in a traditionalist bubble.

Many evangelical churches stress the personal component of being born again as an adult, preferentially after having led a sinful life. However, this separate bubble without internet, cell phone and cable TV access seems designed to impede one’s children from taking a conscious decision for the Christian faith, against the other options on display in the modern world. Such a traditionalist bubble seems more like a miniature recreation of a hierarchical conformist past (as several people have said) than of the first-generation Christianity or first-generation monasticity Rod Dreher claims to emulate.

PS: The most basic definition of “orthodox” would seem to be someone who can say the Apostolic Creed without hedging. That creed doesn’t mention homosexuality, abortion or male authority.

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Rich Puchalsky 04.11.15 at 3:12 pm

JH: “In general, I am aware that the position that I think would be optimal has a lot of points of connection with the situation we have actually got. Although there are also some points of difference.”

Maybe you could explain what those points of difference are, then, because I don’t see any.

Let’s take the sincere Leviticus literalist that you keep using as an example. Let’s say that they have a business called Levi’s in which they make pants in which cotton is not mixed with any other kind of material. If they wholesale the pants rather than retail them, they would not be covered by “public accommodation” law. But let’s say they really want to sell them retail. If they have policies that are applied consistently to everyone, that are not clearly written as an excuse to exclude a protected class, they have a wide latitude of permissible discrimination. But let’s say that’s not good enough for them. In that case, you say, they should still be allowed to sell their pants retail. And current law says they shouldn’t. Is that the point of difference?

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mattski 04.11.15 at 3:29 pm

“Everyone says people should behave well. But nobody wants to be forced to behave well. So I reserve the right to behave badly from time to time–within the law of course!–just to make sure I’m still free to do so.”

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Marshall 04.11.15 at 4:01 pm

Jerry Vinkurov:
you just have to be able to articulate those values in terms that are accessible to everyone.

Well, that’s a losing proposition as glancing through any CT comment thread will show.

mattski:
‘The chosen values need to come from somewhere.’
They are taught by parents, friends, the community at large. And they are taught by experience. “That which is hateful to you, do not do to others,” is a moral teaching AND an hypothesis that can be tested by any person any time they wish to practice it.

People learn their values and how to practice them as children in families, neighborhoods, and other face-to-face communities. They can be modified later in life with effort and usually pain (a prominent argument secularists use against religious education).

The Golden Rule is a value of many religions and is a good entry point but it don’t prove nothing because it begs the question of how much of the other person’s standards are acceptable. It points to compassion or empathy … so how can you be empathetic with someone whose language you refuse to accomodate?

Accepting only the values of the widest possible polity means that the discussion is going to stay extremely simple-minded and worse, leads to a race to the bottom as the trimmers focus on their own self-interest: tragedy of the ethical commons. The present movement towards a right to be publicly gay came about because a minority group insisted on injecting their language into the public discourse.

I think John is right on at 185 and thereabouts, it’s about Jim Crowism. A moderation of flaming assholes can be tolerated and is even an ornament to an intersting, progressive society. Also, today’s FA is very occasionally just someone born out of time: Oscar Wilde, Jesus.

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John Holbo 04.11.15 at 4:03 pm

“How would it be nice if racist hoteliers were able to refuse to serve black people?”

No way that I’m aware of. It sounds pretty not-nice.

“Hoteliers should only turn away people if they are drunk and disorderly or wearing the wrong clothes or for some other good reason.”

Look, everyone should only do anything for a good reason. Or at least not for a bad reason. But if you make it a general law that no one us allowed to do anything for a bad reason, that causes other trouble.

Obviously I’m in favor of keeping it illegal to turn away black people from your hotel in the US. But I’m also in favor of letting people be jerks in some cases. Yet I’m not in favor of being a jerk. This isn’t a contradiction.

“Maybe you could explain what those points of difference are, then, because I don’t see any.”

Well, for one thing, I’m in favor of passing anti-discrimination laws to protect gay people. For the reasons given. Indiana doesn’t have such a law at present (as you may know!) I explain, up-thread, why we ought to have such laws, and what the scope ought to be (but since you don’t like ‘ought’ maybe your eyes glazed over at that point and you missed it.) I’m not in favor of letting religious liberty count as a legitimate legal trump, allowing discrimination against gay people. For the reasons given. That’s kind of on the fence, as to whether it’s legally actual or not. Certainly some people wish to make it so.

So, no, I don’t think I’m just weirdly insisting that nothing must change. And I’m not weirdly missing that many things are already close to the way I would like them to be. Maybe it’s just my use of the subjunctive. ‘It would be best if women had the vote.’ I might write a sentence like that, yet I also know that “The 19th amendment struck down that restrictive law,” as Schoolhouse Rock taught me to sing.

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Rich Puchalsky 04.11.15 at 4:03 pm

Since I have to travel a bit later today and may not be around, I’ll add a few responses to where I think this is going: if John answers yes to my question in #231, then my response is basically to hell with that. The reason I’ve brought up actually being Jewish in the U.S. is because I’ve actually experienced prejudice, and John’s presumed point of difference with current law is one that I’d attempt to sabotage if it looked like it had any chance of actually being implemented. Unlike John I see no reason to assume that Dreher is sincere: unlike mattski I think that pleas for compassion that are directed towards minority groups in society are kind of wrongheaded. (It’s fine for MLK Jr. to talk about the compassion needed to be in the Civil Rights Movement: having the white moderates counsel compassion is something else.) So this just becomes a test of who can work the system better, and I think that people who think as I do can work it better.

Secondly, the system demands all kinds of restrictions on freedom that rather leave me cold about the presumed point of difference above. For instance, during the Iraq War people had to pay their taxes and support the killing of hundreds of thousands of people in an unjust, aggressive military conquest. I’ve hinted more than once that maybe, if we’re really concerned about individual autonomy, we may have to give up on the liberal order entirely as well as on the opportunities for coercion of right-wingers that it presents. But no takers so far.

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Vasilis Vassalos 04.11.15 at 4:49 pm

JH, in response to
” I think John states clearly that he thinks discrimination should ideally be allowed, because to not be coerced not to discriminate is part of freedom and freedom is good. Unless of course it results in Jim Crow-ish things, somehow.”

“Yes, that’s about right.”

and then elsewhere:

“If you make it a general law that no one us allowed to do anything for a bad reason, that causes other trouble.

Obviously I’m in favor of keeping it illegal to turn away black people from your hotel in the US. But I’m also in favor of letting people be jerks in some cases. Yet I’m not in favor of being a jerk. This isn’t a contradiction.”

I hope it is really clear to everyone, even if not to John himself, that these two are not identical positions. The critical difference is what are those cases. And the important question that John unfortunately does not want to engage with is why discrimination is among the “be a jerk” things he is in favor of allowing people.

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mattski 04.11.15 at 6:23 pm

Marshall,

You say the golden rule doesn’t prove anything. Is it supposed to prove something? And maybe we shouldn’t be too quick here. If you *practice* the golden rule, over time you may be in a position to draw some conclusions about it.

so how can you be empathetic with someone whose language you refuse to accomodate

Can you help me out here? Who specifically are you referring to?

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js. 04.11.15 at 7:03 pm

I’m with Vasilis Vassalos here. I don’t see why enabling or allowing discrimination is a good outcome (i.e. “nice”). The government forcing people (if necessary) to stop discrimination against oppressed groups seems the better outcome.

(if we were to take the freedom is good hence allowing discrimination is good line seriously, there’s no reason why it shouldn’t extend to “Jim Crow-ish” cases as well.)

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Vasilis Vassalos 04.11.15 at 7:44 pm

I think John’s position is one of balancing. Allowing someone to be a jerk is a good thing (because freedom), all things being equal, but if all things aren’t equal, then we need to consider the balance. Hence, the balance shifts if Jim Crow-ish things happen also.

But the assumption that the definition of freedom includes all these freedoms to be an asshole, and every retreat from acting as an asshole is a freedom restriction that needs to be balanced in a consequentialist manner (cost-benefit), is a bit extreme, non-“standard” and not that easy to defend, I think.

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Marshall 04.11.15 at 7:47 pm

@mattski: Can you help me out here?

Probably not.

@js

It’s about freedom of association vs. historical context.

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Bruce Wilder 04.11.15 at 8:00 pm

parse @ 174: The political fight over “gay marriage” looks to me like liberals joining the conservative side of the revolution rather than the radical, trying to establish a norm where gays accept standards of propriety that aren’t quite Victorian but are certainly bourgeois. Conservatives don’t like it, and there are some gay folks who don’t like it either.

abbe faria @ 177, 179: I think it’s very difficult for anyone to sustain their views given what we know about the history of sexuality.

So much of the thread has been about the minutiae of what are, or should be, the transactional rules of commerce that we lose track of the kulturkampf in which the political fights over what rules should be adopted, and how ideas should change about what those rules mean in the shared construction of mainstream culture. The culture has moved remarkably fast in my lifetime, to the point where even the Pope shrugs his shoulders and asks, “who am I to judge?”

That’s “nice” (certainly nicer than the last Pope’s hypocrisy and arch pronouncements about intrinsic evil), and I approve “be nice” as a general transactional imperative, except, of course, when someone takes me to task for not-being-nice, which sometimes I’m not. Not quite Kant, and not quite “don’t be a jerk”; more like my mother’s admonitions not to upset anyone at the dinner table or to shout in the house.

The transactional “nice” or “don’t be a jerk” analysis, though, leaves the whole regime of control of sexuality out of account. At most, we get some side-glance at “Jim Crow”, which, of course, was a moniker for a racial scheme, to which analogies were drawn, back in the days of Stonewall and all that, but not the actual regime of sexual control, to which repression of homosexuality and oppression of homosexuals attached.

Maybe that’s OK. For the moment of liberal triumph, the reactionaries are disadvantaged by having to adopt the vocabulary of liberal transactionalism and criteria of implicit utilitarianism. Bourgeois marriage, with family planning, at-will divorce and no jail-time or embroidery for adulterers let alone catamites, looks pretty good. Will reactionaries turn at some point, abandoning the hapless baker, and go after, say, the gay bathhouse?

At various points in the past, the reactionaries have won. I’m not sure about how or why, exactly.

abbe faria raises the most interesting question to me: whether the category “gay” refers to a reliable salient of personal sexual identity. Under a liberal regime, with its emphasis on individual autonomy, maybe it doesn’t matter much — the culture is fluid enough that various experiments can go forward and concepts will evolve. On the other hand, the economic foundation for individual autonomy is eroding pretty fast for at least half the population in the U.S. and large parts of the rest of the developed world.

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bob mcmanus 04.11.15 at 8:17 pm

234: As usual…

It would help me out if you would provide a few concrete non-trivial examples of “being a jerk” that you would find protectable, those examples going beyond free speech questions (although speech-acts might be included) to public actions that do damage or sorely offend and might need state protection, and are not already protected. “Republicans stink” as protected speech would no be climbing the limb.

For example, walking away from a proselytizing atheist at a convention might be rude, but the atheists inc are unlikely to demand gov’t action to forbid or regulate such rudeness, or to gain a hearing on their behalf. “Being a jerk” becomes relevant to this thread only at that point where the victims of jerkitude believe they have an actionable case for institutional protection.

More than one example, please. Surprise me.

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Consumatopia 04.11.15 at 8:42 pm

Of course there is balancing here, where I think the disagreement lies is in who is balancing who.

JH sees, I think, a balancing between the ideal of religious liberty/tolerance, and the pragmatic consequences of discrimination/Jim Crow. I guess it would be as Marshall said–“freedom of association vs. historical context”.

Some of us might see things vice versa–a balance between the ideal of equality under law, and the pragmatic consequences of edge cases like whether use of otherwise proscribed drugs should be allowed in religious ceremonies. So, to me, something like the federal RFRA of 1993 represents a a sort of messy yet indispensible duct tape hack for a difficult problem, rather than an ideal to aspire to. Or equality under law vs. historical context.

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mattski 04.11.15 at 8:51 pm

Marshall,

You don’t want me/us to know what you’re talking about?

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js. 04.11.15 at 8:53 pm

I think John’s position is one of balancing.

I get that. But I think if you apply it to Jim Crow cases, you get a seriously weird result: Racist fucks having the freedom to oppress black people considered in itself is “nice”—it’s a type of freedom and freedom is good, so this is also (considered as such) good. Except that it’s outweighed by the harm caused to black people so shouldn’t be allowed. Maybe this is how JH wants to conceptualize these kinds of cases; I think this is fucking insane. (In any case, I don’t think we’re really disagreeing.)

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Rich Puchalsky 04.11.15 at 9:39 pm

JH: “Well, for one thing, I’m in favor of passing anti-discrimination laws to protect gay people.”

I already mentioned that sexual orientation is a protected class in only 22 states. Let’s say that it was made a Federally protected class. What other actual changes in the law would you suggest? Keep in mind that while Sebastian H might be fine with being turned away by the nice gentleman who’s a Leviticus literalist, and that you think that it’s OK to let him do his thing because his case would be so rare, I disagree and don’t want to have that scumbag refuse to provide whatever services he’s supposed to provide even once. Do we all get to vote on this, or do I get an effective veto in the form of the dysfunctional U.S. political system, which is tied to a 1964 solution forevermore? Because that veto is going to be used, so you can just give up on it.

The problem with “balancing” this stuff is that it’s already a balance. Dreher and his ilk never came to terms with why that balance was necessary in the first place, so it never can be reopened in any practical sense.

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Vasilis Vassalos 04.11.15 at 11:22 pm

Rich, you lost me there. From a philosophical discussion you got down to the details of a political compromise. I am not sure this sort of change of “venue” is helpful

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Rich Puchalsky 04.12.15 at 12:24 am

I don’t really see a philosophical discussion going on. First of all, CT banned everyone who would really have a philosophically different view than the standard one here (which is, more or less, boilerplate liberalism). The only “person” who we are really arguing with is the tiny simulacrum of Dreher in John Holbo’s head, which bears only a kind of idealized resemblance to the actual Dreher. Second, all attempts to generalize from Dreher’s complaint about current U.S. politics to larger philosophical matters or even to non-US politics appear to be doomed by the incoherence and particularity of the starting material.

But third, my insistence on getting the historical and political background right before setting off into flights of fantasy is intended to make the point that this is a political reality for people before it’s a subject of philosophical discussion. People in this thread have asked why we would react to a baker not making a wedding cake with the force of law. It has everything to do with the decidedly nonphilosophical history in the U.S. around the Civil Rights Movement, which was a history of struggle and of people getting killed.

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Consumatopia 04.12.15 at 12:27 am

Just to take things in a different direction, I share ZM’s doubts at 125 about an opposition between Christianity and autonomous selves. Not just for the obvious reasons that we’re supposed to have free will and individual souls. There’s all the Christian stories of righteous individuals being persecuted by sinful communities. There’s the medieval scholastics who kept the tradition of rationalism alive in the West–including logic and argument, which both presuppose individual judgment.

Ultimately, a proselytizing religion must embrace individuals making choices on their own experience–proselytization inherently depends on overturning somebody else’s orthodoxy. The missionary must leave their community and convince individuals of other communities–by good works, arguments, miracles, whatever.

Now I guess what these people want to say is that while meaning is something that can be understood or apprehended by individuals, it isn’t something that’s decided or created by individuals. But that’s not an argument against liberalism, autonomy, or individual choices, that’s an argument against relativism.

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kent 04.12.15 at 12:53 am

Just checking in here very late, to say:

John, you have at least one reader who read through your entire original post, and very quickly understood what you were saying and why. Every little twist, the correct meaning of ‘nice,’ everything.

The way you write is obviously not for everyone! But I wish I could master it. You manage to pack a very large number of ideas into a very short space. (Even though the short space seems long after a while, that’s only because there are too many ideas.)

[In particular, I’m going to remember “Can you turn the tables without turning both sides of the table?” — and chew on it — for a long time.]

I do have one suggestion. You have spent a lot of time replying within this thread, trying to clear up misunderstandings of your position. I would urge you to spend less time doing so in the future. Especially if it frustrates you and makes you less likely to write your original posts in the future. (Just reading the comment thread frustrated me about a dozen times.)

And sorry if this comment is a bit fan-boy-ish. It’s so much more respectable to tell someone how much you hate what they wrote, than how much you love it.

In brief, what I would say to Rich, especially, but also to the others who keep misunderstanding or misattributing: John is a philosopher first and foremost. Read what he is saying in that context. If some of his philosophical points don’t necessarily translate instantly so as to give your preferred result within your preferred context (here: public policy) — well, yeah, of course! Nor does public policy necessarily make for good philosophy.

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js. 04.12.15 at 1:31 am

boilerplate liberalism

It’s not really “my view” (and I’m not sure it’s boilerplate), but I do think you have to take on some basic liberal premises and assumptions to find this sort of thing interesting. I really liked the OP because I thought it maneuvered dexterously through some dark alleyways in the Land of Public Reason. (At least that’s how I was reading it because I couldn’t give a fuck about Dreher—I don’t even know who he is.) And again, while that’s not a conception I’d defend at the end of the day, it is something I find fascinating. And it’s a kind of intra-liberal issue, and if you don’t care about that sort of thing at all, then yeah, this whole argument is going to seem utterly pointless, I’d imagine.

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John Holbo 04.12.15 at 1:34 am

“And the important question that John unfortunately does not want to engage with is why discrimination is among the “be a jerk” things he is in favor of allowing people.”

I’m in favor of discrimination because I want the Jewish deli owner to not have to cater for the neo-Nazi rally. I want people to have some freedom as to whom they do NOT want to work for/associate with.

Now, you might get confused now and say: but that’s not being a jerk. And you are right. I’m in favor of discrimination because in a lot of cases, discriminating isn’t being a jerk at all.

However, I’m also in favor of letting people be jerks. Suppose five Mean Girls are mean to a girl. They are jerks. But I do not think it should be illegal to be a Mean Girl. Because the attempt to define what it means to be a Mean Girl would backfire in various unfortunate ways, even if we often know it when we see it. People being jerks should be handled – often badly, I’m sure – in more informal ways, typically. Not all bad things should be illegal. Not all good things should be legally mandated.

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John Holbo 04.12.15 at 1:39 am

“I don’t really see a philosophical discussion going on.”

I am always trying to find points of agreement with Rich, and here is one. I believe that Rich doesn’t see a philosophical discussion going on. I wouldn’t say that he ‘sincerely’ doesn’t see a philosophical discussion going on, since I reserve that word for other sorts of cases. But I will go with ‘really’. In fact, I will go further: Rich really really REALLY doesn’t see a philosophical discussion going on.

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ZM 04.12.15 at 1:57 am

John Holbo,

ZM: “How would it be nice if racist hoteliers were able to refuse to serve black people?”

JH: “No way that I’m aware of. It sounds pretty not-nice.”

But you were the one that said it would be nice! (although I did say I doubted your sincerity) Someone asked “Do we really think it would be “nice” if hotel owners could refuse to serve black guests” and your response was “This is complicated, even if it seems like it should be simple. What makes it complicated is that, in a sense, it would be nice if people are allowed to be flaming assholes.”

Now you are falling back to – “it’s simple, no way could it be nice” but you said before, in a sense, hoteliers turning away black people could be nice.

JH: “Look, everyone should only do anything for a good reason. Or at least not for a bad reason. But if you make it a general law that no one us allowed to do anything for a bad reason, that causes other trouble.”

It would cause trouble because it would be difficult to enforce strictly because it is quite a general clause — in fact if it was legislation it would likely be an objective not a clause, and then you could have specific clauses after:

eg. “The objectives of The American Good Conduct Act (known henceforth as The Act) are : i. to ensure all conduct is enacted only for good or neutral reasons” — and then you have specific clauses in the section for that objective e.g.. “s.i cl.48 All conduct on train station platforms must be respectful to the elderly and not discriminate on the grounds of gender” then Jonathan Franzen would be in breach of this clause and in order to pursue the objectives of The Act the train station man would not chase him away angrily but angrily pull him along by his nose to the Alderman, who is the responsible authority for punishing misdemeanours relating to The Act, who orders that Mr Franzen must plant trees in local bird habitat for 7 consecutive Sundays.

JH: “However, I’m also in favor of letting people be jerks. Suppose five Mean Girls are mean to a girl. They are jerks. But I do not think it should be illegal to be a Mean Girl….. People being jerks should be handled – often badly, I’m sure – in more informal ways, typically. “

I think most schools would have codes of conduct against bullying. There is also probably something in the relevant education acts and policies that make schools accountable for maintaining inclusive environments and having appropriate processes for handling the offence of bullying. Like in my state Victoria all schools are mandated to have a policy for preventing bullying. This is formal, not informal.

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John Holbo 04.12.15 at 2:30 am

Bob McManus: “It would help me out if you would provide a few concrete non-trivial examples of “being a jerk” that you would find protectable, those examples going beyond free speech questions (although speech-acts might be included) to public actions that do damage or sorely offend and might need state protection”

OK, here’s my example. Being Bob McManus. Most days, that is one jerk move.

Bob McManus is a smart guy, erudite and perceptive, whose motives are, however, mixed: intermittently trollish and disruptive. Let loose, he can derail a thread that was otherwise going nicely. He can drive people away from a well-mannered conversation in disgust, because he has more than a touch of mischief in his soul. He has a certain Will To Power, a will to dominate, an impulse to contemptsmanship for contemptmanship’s sweet sake. In short, Bob McManus acts like a jerk would act. (And if it walks like a duck, and quacks like a duck … ?)

Now, should the state make it illegal to be like Bob McManus, because he is a jerk and will predictably cause innocent people psychic pain. I think: no. Bob may be a jerk, but it shouldn’t be illegal.

You wanted more examples? Rich Puchalsky. Smart guy, but he can be a jerk.

Another example. I don’t know whether it will surprise you or not: John Holbo. He is often a bit of a jerk. He tells himself he is only doing it to pay other people back for being a jerk to him, and to keep the thread on an even-keel without having to ban people for trolling. And that’s true enough. In any thread with Bob McManus, Rich Puchalsky and John Holbo, I flatter myself no reasonable person asked ‘who is the jerk here?’ is going to pick on Holbo FIRST. But this doesn’t speak to the beating psychic heart of the issue. Me not being the biggest jerk in a jerk lineup is soft bigotry of low expectations. And maybe I’m wrong. Maybe I’m the biggest jerk here and Bob McManus and Rich Puchalsky are jerks, too, but not the biggest jerks.

Let’s get another example, because all this is getting interpersonally awkward in this thread. Rod Dreher is being a jerk to gay people. He thinks he’s acting this way out of lofty religious motives. I think he’s doing it out of ressentiment. It’s galling to lose in the culture war and so there just HAS to be some way for the culturally conservative side to pull out a win and end up being morally superior. He’s throwing a pity party without any real cause for anyone to pity him. I think that’s a jerk move. But I don’t think it should be illegal.

And the pizza people are being jerks, too. And the bakers and the florists. They just want to make perfectly nice people feel bad about themselves. That’s deplorable. But I am hesitant to make that illegal because, honestly, if I thought it was a crime to want to make nice people feel bad, I’d have to advocate locking up Bob McManus for many of his CT comments. And I don’t want to advocate that. I think Bob should remain a free man, albeit a jerk.

I only want to make being a jerk illegal if serious, Jim Crow-type problems are going to result.

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John Holbo 04.12.15 at 2:33 am

“I think most schools would have codes of conduct against bullying.”

Yes, codes of conduct to deal with these issues, rather than having to call the cops, is a good idea.

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ZM 04.12.15 at 2:44 am

Well it’s a bullying prevention thing rather than a code of conduct and having one is mandated by the state government – so if the schools didn’t prevent bullying appropriately then students or parents can take the issue to the department. So it is more than a voluntary code of conduct actually.

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js. 04.12.15 at 2:49 am

JH @253:

You seem unable or unwilling to countenance a distinction between groups that are oppressed and groups that aren’t. I’m just wondering why.

(Randomly: did bob mcmanus use to disrupt threads inthe way back? Because I’ve been commenting on CT threads for 4-5 years, I think, and I’ve never thought of mcmanus as disruptive. More often than not, he’s quoting some fairly obscure thing that almost no one else knows about. I really don’t think I’ve ever seen him properly derail a thread.)

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js. 04.12.15 at 2:56 am

And the pizza people are being jerks, too. And the bakers and the florists. They just want to make perfectly nice people feel bad about themselves.

This is a strange thing to say. If the problem was just that they were trying to make, or successfully making, other people feel bad about themselves, then everything you’re saying would make sense. What they’re doing though is refusing to provide services that it’s at least entirely possible aren’t available otherwise. Or at least, aren’t available otherwise given other constraints that might be present in a given case. That’s surely what you need to prevent. I mean, of course, let people make other people cry to their hearts’ content. I’d hardly want to prevent that!

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John Holbo 04.12.15 at 3:38 am

ZM: “You seem unable or unwilling to countenance a distinction between groups that are oppressed and groups that aren’t. I’m just wondering why.”

And I, in my turn, are wondering how it could seem I am unwilling to countenance this thing since my clearly-stated view is that non-discrimination law should protect, precisely, historically oppressed groups and should aim, precisely, at preventing any groups from being oppressed, Jim Crow-style. The core of my view is this thing you think I don’t countenance. So I think you have misread my somehow.

Maybe this is what is confusing you. You think that, if I think you shouldn’t go to jail just for being a jerk, that therefore I think being a jerk is protected. Ergo, you can’t go to jail so long as you are being a jerk. No. That makes no sense. The pizza parlor people are being jerks, and they should be forced to serve gay people (in my view). But they shouldn’t be forced to serve gay people BECAUSE they would be jerks if they didn’t. No, they should be forced to serve gay people because we have legitimate concerns about this group suffering oppression. Clear?

As to the not-nice confusion, further upthread. Sorry, I misread your initial sentence. You asked whether it would be nice for hoteliers to be able to refuse service, and I read it, wrongly as, would it be nice if they did refuse service. And I said it would be not-nice. I should have said it would be nice, not because it would be nice if they did, but because it would be nice if, in general, people have freedom.

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Rich Puchalsky 04.12.15 at 3:38 am

But this is exactly what I was getting at — we have a Civil Rights Act of 1964, not a Don’t Be A Jerk Act of 1964. It doesn’t ban acts of making other people feel bad or uncomfortable: it bans acts of refusing service to protected classes by people running public accommodations. Mixing the two of them up is trivializing the issue.

“I’m in favor of discrimination because I want the Jewish deli owner to not have to cater for the neo-Nazi rally. I want people to have some freedom as to whom they do NOT want to work for/associate with.”

And they have that freedom. And Dreher wasn’t talking about this really in any way, so … let the straw man burn out already. No one is an anti-discrimination absolutist to the point where they say that no one can discriminate for any reason. I’m sure that Dreher would be glad to say “Hey, we let the Jewish printer discriminate against neo-Nazis, so why can’t a Christian baker discriminate against gays?” And explaining why gets into the same actual history that you vaporize whenever you bring this up again.

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ZM 04.12.15 at 3:43 am

John Holbo – that was js not me ZM

my comment was about bullying prevention at schools being mandated by the state so it is not informal. Bullying in schools and workplaces is recognized as a problem that government should deal with by policies – not by saying people should be free to be jerks and have a voluntary code of conduct. I have not watched Mean Girls so I don’t know how the school in the movie dealt with bullying and whether this was adequate

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mattski 04.12.15 at 3:44 am

js.,

You seem unable or unwilling to countenance a distinction between groups that are oppressed and groups that aren’t.

That could be difficult to determine. Sometimes it’s obvious, sometimes it isn’t. More often than not it’s disputed.

Rich,

So this just becomes a test of who can work the system better, and I think that people who think as I do can work it better.

I think there is some merit to this. Like, “he may be a jerk, but he’s our jerk.” Not being snarky. I’m often guilty myself. But the ‘system’ gets worked through many channels. And in the aggregate the sort of ‘psychic violence’ that you rely on is subject to similar failures of the physical violence that MLK denounced.

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ZM 04.12.15 at 3:49 am

John Holbo,

The first part was in response to js not me zm but this might be in response to me:

“As to the not-nice confusion, further upthread. Sorry, I misread your initial sentence. You asked whether it would be nice for hoteliers to be able to refuse service, “

No that was not me but a different commenter asked that

“and I read it, wrongly as, would it be nice if they did refuse service. And I said it would be not-nice. “

No you read it right – that was the other commenters question – and you said it is not simple and it would be nice in a sense because freedom – then I said it would not be nice at all

“I should have said it would be nice, not because it would be nice if they did, but because it would be nice if, in general, people have freedom.”

No we have laws – having laws to stop people doing things is nice. Having no laws and only freedom would not be nice in my opinion

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John Holbo 04.12.15 at 3:54 am

“No we have laws”

I’m in favor of laws. Sometimes.

I’m off to do other stuff today. Play nice.

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John Holbo 04.12.15 at 4:07 am

One more response to Rich and I’m out:

“we have a Civil Rights Act of 1964, not a Don’t Be A Jerk Act of 1964. It doesn’t ban acts of making other people feel bad or uncomfortable: it bans acts of refusing service to protected classes by people running public accommodations. Mixing the two of them up is trivializing the issue.”

No, it’s a clarifying move. I know what our actual legal system is. But I want to clarify why it makes sense for it to be that way, more or less, so we know how to adjust it – expand it, contract it – around the edges. You think all the answers hereabouts are obvious, Rich. So you are not interested in any attempts to clarify why the law should be one way or the other. That’s fine.

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ZM 04.12.15 at 4:08 am

John Holbo,

“[js] Maybe this is what is confusing you. You think that, if I think you shouldn’t go to jail just for being a jerk, that therefore I think being a jerk is protected. Ergo, you can’t go to jail so long as you are being a jerk. No.
….
I should have said it would be nice, not because it would be nice if they did, but because it would be nice if, in general, people have freedom.”

I really don’t think js or anyone else thought you were making the extremely odd argument that so long as illegal acts were committed by jerks or by people who had the intentions of being jerks, the illegal acts should not be prosecuted due to exemptions for jerks in all laws.

Anyway, now I can return to my example of Jonathan Franzen and freedom and jerkiness and wrongness.

In the good conduct on train stations example where he was a jerk this is reasonably petty, so only a light punishment or being dragged by the nose and tree planting in bird habitat should be countenanced.

In the other example of him writing in the New Yorker he should not be held accountable for his personal activities emitting greenhouse gasses, nor should anyone propose widespread laws on greenhouse gas emoting as that is puritanical, and he enjoys contemplating his death and the death of the planet at the same time, so flying to South America to see far away bird conservation efforts makes him just as good as Saint Francis –
Well as you can see this is not petty wrongdoing like the other example, but a serious and conscious embrace of wrongdoing.

It is not good that Jonathan Franzen has the freedom to do this – it surpasses the petty wrongness of just being a jerk

Your freedom argument is problematic here. It is not nice to let Jonathan Franzen decide he may as well ruin the world – obviously leniency towards train station platform behaviour has led to something worse in his case – he even wrote his book Freedom about this issue

The commenter Ben on the gorrrr thread said this in regards to Jonathan Franzen about elite attitudes to freedom and climate change :

“that global capitalism’s march of death is to be embraced; that an intensely selfish and narcissistic progressive hedonism is the only respectable way to live; basically, the celebration of the cheapening (in every sense) of human life – and voicing them in a mainstream, centrist, establishment organ.

It’s a canary in the coal mine observation, basically, and I’ve been noticing similar wafts of Thanatos from elite opinion recently. That kind of ideological production is . . . worrying.”

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Rich Puchalsky 04.12.15 at 4:09 am

js: “It’s not really “my view” (and I’m not sure it’s boilerplate), but I do think you have to take on some basic liberal premises and assumptions to find this sort of thing interesting. […] And it’s a kind of intra-liberal issue, and if you don’t care about that sort of thing at all, then yeah, this whole argument is going to seem utterly pointless, I’d imagine.”

The American right wing is a coalition organized around racism, and to really get a philosophical dispute about this you’d need some racists to take the pro-discrimination side. But CT has recently started to take its content ban on expressions of racism seriously (after BB announced that he was a scientific racist for I don’t know how many times) and they’re gone or self-censoring. (Yes, I know that homophobia isn’t a form of racism, but every right wing issue is linked through racism in the U.S.)

I don’t think that that many leftists remain who actually oppose liberal anti-discrimination talk as a distraction from class issues. Although bob mcmanus seems to have gotten picked out as a disruptor just for doing that.

270

Rich Puchalsky 04.12.15 at 4:26 am

JH: “But I want to clarify why it makes sense for it to be that way, more or less, so we know how to adjust it – expand it, contract it – around the edges. You think all the answers hereabouts are obvious, Rich. So you are not interested in any attempts to clarify why the law should be one way or the other. “

Of course I’m interested in attempts to clarify why the law should be that way. How many times do you think I’ve typed 1964 in this thread? I’ve said, over and over, that the law can’t be clarified abstractly: it has to be clarified with reference to actual history.

As for attempts to adjust, expand, or contract it, I’ve written some things about that too. So you can see what I’m talking about, I’ll try a different issue: environmental laws. Here’s a list with the major ones bolded. Look at the weird time clustering that’s going on. You’ve got 1963, eight bolded laws (plus the Endangered Species Act) 1970-1976, 1980, 2 in 1986, 1990. Nothing major since then. We are actually incapable of adjusting, expanding, or contracting major laws because of the radical right. If we do get sexual orientation added as a protected class, it’s going to get plugged right into language from 1964.

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John Holbo 04.12.15 at 4:46 am

OK, just to clarify: Rich finds it boring to argue about these things because he thinks it’s boring and pointless ever to intellectually engage with someone like Rod Dreher. So, logically, there was no hope of this thread being interesting after the first paragraph of the post itself. (Why Rich is nevertheless participating in the thread is an interesting question, about which I have theories of my own. But I got better things to do. See y’all later.)

272

Rich Puchalsky 04.12.15 at 5:28 am

We’re not engaging with Rod Dreher. He’s not here. Even his source post is not really being read directly (or, as Bruce Wilder found out, if you do read it directly you get very sad about your dying neurons), we’re engaging with your version of it.

As for why I participate in the thread, you really are being a bit jerky about this. Here’s what I got to do in the thread so far:

* discuss and agree with Russell Arben Fox about some differences between political goals of majoritarian religious communities and actual minority ones;

* clarify what _The Nurture Hypothesis_ is about;

* begin to describe the problematics inherit in liberal anti-discrimination thought from an anarchist viewpoint, and point out that how that “how to protect children from being raised by right-wingers” is actually high on the list of important social control provisions of liberals I’ve talked to;

* review once again that a) right-wingers lie in response to liberal victories and b) they harm people whether or not they are sincere, vs your emphasis otherwise (OK, that part wasn’t so much fun);

* in response to Sebastian H’s “why do we have to make a Federal case out of this”, try to allude to and then actually explain the history behind why we make a Federal case out of this, complete with the actual meanings of phrases like “public accommodation”;

* in response to Trader Joe wondering why bakers had to make cakes for the KKK and asteele saying that actually they didn’t have to, went into more detail on why they don’t have to. (Which you clarified in the other direction.)

Etc. Yes, your original post was about a sow’s ear that you failed to turn into a silk purse, but I don’t actually read or comment on CT mostly because of the original posts.

273

Consumatopia 04.12.15 at 5:28 am

But I want to clarify why it makes sense for it to be that way, more or less, so we know how to adjust it – expand it, contract it – around the edges.

That’s a worthwhile project. The wrong way to approach that project is to look at marginal situations and ask “should the government ban this activity?” Because that’s never the question the legislature is faced with. Sometimes they are faced with “should we write a new law to ban this activity?” Other times they are faced with “should we write an exception to existing law to permit this activity?” And if we’re talking about something seemingly trivial, e.g. bakers, then our instinct is to answer “no” to both questions–we shouldn’t write a new law to cover it, but we shouldn’t make an exception to existing law for it either. But those answers imply complete opposite answers to “should the government ban this activity?”

To me, that indicates that “should the government ban this activity?” is the wrong question to ask–it doesn’t really have anything to do with the dilemmas faced by a legislature. It doesn’t actually provide any guidance on how we should change laws on the margin.

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John Holbo 04.12.15 at 6:27 am

“but I don’t actually read or comment on CT mostly because of the original posts.”

And it shows! (Sorry, couldn’t resist.)

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Sebastian H 04.12.15 at 6:32 am

” People in this thread have asked why we would react to a baker not making a wedding cake with the force of law. It has everything to do with the decidedly nonphilosophical history in the U.S. around the Civil Rights Movement, which was a history of struggle and of people getting killed.”

Here’s the thing. Very few other groups have suffered in the US the way black people have. So things that were necessary to deal with actual Jim Crow, anti-black people level craziness shouldn’t automatically be extended to other groups, even if those other groups are ‘oppressed’, ‘minority’, or ‘discriminated against’. It is lazy to just say ‘discrimination’ and think you should be able to invoke the entire history of black people in support for your current cause.

Not every ‘protected class’ really needs to be protected the way black people did/do. Broad-brush moves which were over-inclusive but necessary to protect black people, may not actually be desirable. And despite Rich’s constant refrain of ‘public accommodation’, it wasn’t at all clear in 1964 that we should apply it to services off site (i.e wedding photographers). That wasn’t clear until about 2013 when the Supreme Court failed to take the case. Services aren’t the same as goods. When we have mandated services non-discrimination it has tended to be for a very important public good (travel, food, shelter). Floral arrangements at your wedding or a particular photographer aren’t important public goods. At all. Seriously.

And the idea that they were, wasn’t part of how the Civil Rights Act functioned in the 60s, 70s, and 80s. That is a recent development.

It isn’t at all clear to me that was a good development. And even if it were a necessary development for black people, it isn’t clear to me that is a good development for potentially everyone who might fall under a ‘protected class’. At some point you’ve gone well beyond ‘crucial government protection’. Choosing the homophobic wedding photographer of your choice just because her saying ‘no’ hurts your feelings isn’t really the same thing as worrying that if you drive through a town you might be unable to eat or find shelter.

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Sebastian H 04.12.15 at 6:35 am

” The wrong way to approach that project is to look at marginal situations and ask “should the government ban this activity?” Because that’s never the question the legislature is faced with.”

Aaack. This is precisely why conservatives gain so much traction with the idea that government busybodies are so ridiculously overbroad. Of course when you write a law you should try to look at the margins and figure out whether or not the government should ban this activity. That is your whole job. It is disturbing that you might think that isn’t an important function of writing a law.

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js. 04.12.15 at 7:35 am

And I, in my turn, are wondering how it could seem I am unwilling to countenance this thing since my clearly-stated view is that non-discrimination law should protect, precisely, historically oppressed groups and should aim, precisely, at preventing any groups from being oppressed, Jim Crow-style. The core of my view is this thing you think I don’t countenance. So I think you have misread my somehow.

So perhaps you don’t think that gay people are an oppressed group? Because my point in bringing this up was to say that Jewish bakers refusing to serve Neo-Nazi types vs. whitey bakers refusing to serve gay couples is that gay people are an oppressed group and white people are not. So that the “I’m in favor of discrimination…” from @253 is somewhat besides the point. (I’m just wondering if I write so unclearly that my meaning is almost never clear.)

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BillWAF 04.12.15 at 7:39 am

Honestly, this post leaves out too many steps in its reasoning to be useful.

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js. 04.12.15 at 7:45 am

RP @269:

I guess all I can say is that there are more philosophical questions one might get interested in than you seem to imagine. (I mean, I already conceded that it was a weird intra-liberal, late-Rawls kinda thing that you either do or don’t care about.)

280

ZM 04.12.15 at 8:17 am

“to say that Jewish bakers refusing to serve Neo-Nazi types vs. whitey bakers refusing to serve gay couples is that gay people are an oppressed group and white people are not. “

If Jewish bakers refused to serve white gentiles good bagels, I would not be pleased to tell you the truth, even if white gentiles are not oppressed and could buy not so good quality bagels elsewhere. Happily I have never heard of a Jewish baker in the city doing this.

I think the difference is not that white people are oppressed — but that Neo-Nazi groups are horrible and are actively trying to oppress the ethnic and/or religious group that the Jewish baker belongs to. If a baker started refusing to serve girl guides for some reason, I don’t think that would be right. And although I suppose all the shops could enact a boycott of particular customers and refuse to serve all known local neo-nazis, I am not sure that starving neo-nazis is the right thing to do either (although I am a bit unsure about where you should draw the line with refusing neo-nazis. I suppose you could report them for hate speech instead of all the shops refusing to serve them and then the police could deal with the issue of the neo-nazis instead)…

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ZM 04.12.15 at 8:19 am

should be “not that white people are *not* oppressed”

282

John Holbo 04.12.15 at 8:28 am

js. “So perhaps you don’t think that gay people are an oppressed group?”

No, I think I have made my position quite clear. I believe historically oppressed groups can be made protected groups. I believe gay people are an historically oppressed group that, in fact, should be made a protected group. So Indiana, for example, should pass anti-gay discrimination laws, accordingly. All I have been doing is clarifying exactly what makes this sort of legislation make sense. It isn’t just that it’s wrong to discriminate. And it isn’t just that you are a jerk if you discriminate. It isn’t redress for historical wrongs, either. It is concern, going forward, about pervasive, Jim Crow-type conditions. So the question to ask is: if we don’t do this, are gay people actually likely to encounter troubles getting goods and services, in practice? If it’s just going to be the odd wedding vendor, that probably isn’t going to be enough to justify legislation. But if we really are worried about serious problems, we should prevent them. I believe there is reason to worry about more serious, pervasive problems. Sebastian, by contrast, says: it’s 2015, seriously, gay people are doing ok by this point.

BillWAF: “Honestly, this post leaves out too many steps in its reasoning to be useful.”

Bill, I appreciate your honesty. But, honestly, your comment leaves out too many steps for its reasoning to be useful.

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js. 04.12.15 at 8:36 am

Look, I love my bagels too! But the point surely is that you want to protect, legally, members of groups that have historically been discriminated against. That’s the basis of all civil rights legislation, at least in the US. So either you decide (again, legally) that gay people are an oppressed group and so afford them anti-discrimination privileges, or you don’t. In which case, well, it seems like you allow discrimination. But I don’t think I’d want this to turn on which groups are “hateful” because for as much as I hate the BJP, e.g., I wouldn’t really want BJP types to be denied their cakes, or their pamphlets.

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Vasilis Vassalos 04.12.15 at 8:43 am

“I’m in favor of discrimination because I want the Jewish deli owner to not have to cater for the neo-Nazi rally. I want people to have some freedom as to whom they do NOT want to work for/associate with.

Now, you might get confused now and say: but that’s not being a jerk. And you are right. I’m in favor of discrimination because in a lot of cases, discriminating isn’t being a jerk at all.”

Then why do you have such a hard time discriminating between the cases discrimination is “being a jerk” and the cases where it’s not? Why do you have to bring Jim Crow into it? Bakers discriminating against gays: Being a jerk. I say that doesn’t have to be an allowable way of being a jerk. Why are you in favor of allowing *this way* of being a jerk to the point of advocating in a number of places in this thread that maybe this should be allowed? (in other places, you say it shouldn’t be allowed, you’ve really muddied the water on this).

I agree with you (as does everyone on the thread) that being a jerk should be (and is) allowed, btw. I am not sure why you keep repeating it as if it’s a point of contention or needs to be clarified. As to your reply to Bob McManus, he specifically asked for examples that are not speech (hence protected) and you gave him speech examples… (unless trolling is a speech-act? Is it?)

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ZM 04.12.15 at 8:45 am

“But the point surely is that you want to protect, legally, members of groups that have historically been discriminated against.”

I am pretty sure shops and hotels are supposed to be open to the general public, unless they are clubs with membership and rules and fees. Some places can refuse to have people without proper shoes etc, but the people can just go home and put on the right shoes.

If bakers don’t want to serve gentiles bagels, or girl guides baguettes, well I am not sure that is allowed. I think the Jewish baker should not have to serve neo-nazis because neo-nazis hate jewish people and he is himself a jewish person, not because I think it is okay for shopkeepers to just decide on not serving random groups of people other than specific protected groups.

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js. 04.12.15 at 8:50 am

All I have been doing is clarifying exactly what makes this sort of legislation make sense.

Jesus, seriously!? Well, apologies. (Tho frankly, you could use being a little more direct sometimes; and I still think the Jewish baker analogy is misplaced, at least if I’m understanding it right.)

287

John Holbo 04.12.15 at 8:56 am

“But the point surely is that you want to protect, legally, members of groups that have historically been discriminated against. That’s the basis of all civil rights legislation.”

That’s the basis – the legal mechanism: and a sound mechanism it is – but it’s not the justification. The justification is that you want to protect people going forward. Look, suppose we knew – this is absurd, but suppose we knew – that going forward, gay people have nothing to worry about, discrimination-wise, whereas left-handed people are going to be discriminated against, just for being left-handed, and made victims of pervasive Jim Crow-style oppression. Who should we protect, going forward: the gays, who don’t need it, or the left-handed people, who do? The left-handed people, obviously, even though historically they’ve been doing alright until now. (Bit of discrimination around the margins. As a lefty, I should know!) This is silly, I know! But it shows that the facts about history are contingently related to the moral goals of the law. In the real world, we look to history, like sensible people. But we also remember why we are looking, like sensible people.

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John Holbo 04.12.15 at 8:59 am

“‘All I have been doing is clarifying exactly what makes this sort of legislation make sense.’

Jesus, seriously!? Well, apologies.”

I’ve found it a bit strange myself. But you start at the point you meet resistance, and you go from there.

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Vasilis Vassalos 04.12.15 at 9:02 am

Comment 282 is clear enough.

But here’s the thing: Is it really a standard definition of freedom that freedom means being able to be a jerk in any way possible? Polluting a stream, groping people, etc? Or is providing a service somehow different?

I mean, I could see John’s point much more clearly if the reference was to the Rotary Club rather than a baker. Being forced to include gays or blacks in the Rotary Club seems a much clearer imposition on the liberty of being a jerk, being done for a higher purpose. But service provision to everyone seems to me akin to putting smoke filters on top of your industrial smokestack: It’s not really a question of liberty to be able to pollute at will, i.e. liberty self-recognizes limits — or not?

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Vasilis Vassalos 04.12.15 at 9:10 am

Re: 287:

I claim, pace 285, that the baker should still not be allowed not to serve random people based on whim, even Neonazis — even though as a practical matter there can’t be any consequences for random acts of “discrimination”, the admin cost is just too high, and the priority too low.
The printer and the Neonazis are another matter. I am not exactly ready to explain why/how — but it feels too blunt an instrument to generalize from this situation to all service providers.

Btw, I am still very worried about how such exceptions or non-exceptions play out in a business context: It seems we are wringing our hands about coercion by law too much and coercion by boss too little.

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John Holbo 04.12.15 at 9:30 am

“It seems we are wringing our hands about coercion by law too much and coercion by boss too little.”

I agree with this in general. I think there are not nearly enough protections for workers in a lot of ways. See Corey Robin’s past posts, with which I strongly agree.

http://crookedtimber.org/2012/07/01/let-it-bleed-libertarianism-and-the-workplace/

But I think that’s a separate problem. You don’t ramp up workplace protections for workers generally by adding, piecemeal, new protected groups, based on historical persecutions of minorities. (I’m not saying there’s no connection, but I think it’s somewhat orthogonal.)

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Vasilis Vassalos 04.12.15 at 9:35 am

I didn’t mean to connect them in this way. The connection I was pointing out was that, no matter what happens to the baker’s freedom in your by now infamous example, the baker’s employees will get no accommodation either way. So you seem to be worried overly much about the “job creators” and not at all about the freedom (to be a jerk or to discriminate) of employees

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novakant 04.12.15 at 10:35 am

I find the casual juxtaposition of gay weddings with Neo-Nazi rallies a bit disconcerting to be honest.

Also, I hope Sebastian H will give us a comprehensive list of services he deems non-essential and doesn’t mind being refused in public on the basis of his sexual orientiation.

I think we’re deep in Slate territory here.

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ZM 04.12.15 at 10:59 am

The Jewish baker could not refuse to serve the Neo-nazi for being a neo-nazi here, as political views are protected. If the Neo-nazi was offensive and caused trouble then that would be a reason to not serve him and if he vilified the baker that would be illegal. Also the Leviticus reader who does not like divorcees would not be able to discrimate either as they are protected too.

“In Victoria it is against the law for someone to discriminate against you because of a characteristic that you have, or that someone assumes you have. These personal characteristics include:
age; carer and parental status; disability (including physical, sensory and intellectual disability, work related injury, medical conditions, and mental, psychological and learning disabilities); employment activity; gender identity, lawful sexual activity and sexual orientation; industrial activity; marital status; physical features; political belief or activity; pregnancy and breastfeeding; race (including colour, nationality, ethnicity and ethnic origin); religious belief or activity; sex; personal association with someone who has, or is assumed to have, one of these personal characteristics.
It is also against the law to sexually harass or victimise someone, or to vilify someone because of their race or religion.”

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Consumatopia 04.12.15 at 12:22 pm

That’s the basis – the legal mechanism: and a sound mechanism it is – but it’s not the justification. The justification is that you want to protect people going forward.

No. We would both like to protect people going forward, and signal to victims of past discrimination that we don’t intend to reverse the progress we’ve made. So even in hypothetical X-Men or District 9 type futures in which new forms of bigotry came to exist that were so serious that the old forms of bigotry were no longer particularly significant, we would still want to keep the old protected classes in effect while we add new classes to the list.

In your thought experiment, the most morally significant fact is not that we will stop discriminating against gays or that we will escalate existing discrimination against lefties. It’s that we are endowed with a strange sort of self-knowledge, having rational and certain knowledge of our future irrationality. That completely changes the context of our policy response. In fact, it’s such an extraordinary assumption that I think it would justify laws or even constitutional changes much more far reaching–lefty affirmative action, guaranteed lefty seats in Congress, “pre-reparations”, who knows what else.

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Consumatopia 04.12.15 at 12:44 pm

It is lazy to just say ‘discrimination’ and think you should be able to invoke the entire history of black people in support for your current cause.

The Civil Rights Act of 1964 doesn’t just cover race, though, it also covers religion, gender, and national origin. We didn’t hand-tailor a specific set of protections for black people, we wrote a set of protections for a number of previously discriminated against groups. And looking at the full set of groups, sexual orientation/identity doesn’t seem out of place on the list.

If we want to recognize that some of these groups received much more abuse the others, the proper avenue for addressing that would probably be monetary reparations.

“And despite Rich’s constant refrain of ‘public accommodation’, it wasn’t at all clear in 1964 that we should apply it to services off site (i.e wedding photographers).”

No, it wasn’t, but it was clear that it went further than the sort of narrowly enumerated lists you gave at 180 and 183.

It also wasn’t clear than it didn’t cover those services. One could imagine a community in which no one was willing to provide catering, decorating or photography services to your wedding. This would be a significant obstacle to holding a wedding in that community.

You can say that’s merely hypothetical. But note that the Civil Rights Act of 1964 doesn’t require you to prove that a particular form of discrimination is actually imposing Jim Crow-like hardship. It’s not like anti-trust law in which you have to prove someone is a monopoly before you regulate them–the protected classes don’t have to prove that the baker is actually successful in oppressing them. This is for obvious reasons–if victims did have to prove that, we would constantly be in a liminal state in which discrimination was almost, but not quite Jim Crow-like

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Consumatopia 04.12.15 at 1:09 pm

Aaack. This is precisely why conservatives gain so much traction with the idea that government busybodies are so ridiculously overbroad. Of course when you write a law you should try to look at the margins and figure out whether or not the government should ban this activity. That is your whole job. It is disturbing that you might think that isn’t an important function of writing a law.

I would say it’s disturbing how you didn’t even consider the actual argument I made and just took a line out of context and aaacked over it, like the kid quoting Stephen Hawking in God’s Not Dead. But honestly, it’s not really surprising.

The problem is that you’re operating under a ridiculous assumption–that if a particular action–a particular event in spacetime–harms no one, then any government that regulates that action is a busybody, and any law that proscribes that event must be repealed. So if the law requires you to stop at stop signs even when you’re driving on flat, deserted sections of road and you can see for miles away that no one is coming, then that law must be changed or it proves that traffic regulations are enacted by busybodies.

Almost all of us agree that there are some actions that it’s important that the government regulate them, and there are some actions that it’s important that the government not regulate them. It’s important that Jim Crow be banned. It’s important that Jewish PR firms not be required to work for Nazis. Your reasoning assumes that everything not in the first category must be in the second–there is no marginal class of actions in which it’s not important one way or the other whether the government regulates them. Thus, all cases are considered equally important.

What this means is that instead of writing the law by considering the most important cases as I would, you write it by looking at the least important cases. You’re very concerned that government busybodies not interfere with those bakers, and you’re comparatively less concerned at all with how whatever legislative changes you enact to protect those bakers will effect more serious instances of discrimination.

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Rich Puchalsky 04.12.15 at 1:16 pm

Sebastian H: ” It is lazy to just say ‘discrimination’ and think you should be able to invoke the entire history of black people in support for your current cause. […] Not every ‘protected class’ really needs to be protected the way black people did/do”

That’s a reasonable argument, but I’ve already addressed it. That’s what the list of environmental laws up in #270 was about — pointing out that the U.S. does not currently have the ability to re-open old legislative deals. Maybe there should be some kind of fine-grained differences in how different protected classes are protected, but if so we can’t do that. Why can’t we do that? Because we have one of our major parties that is organized around holding on against 1964 (metaphorically and literally) that will sabotage any new attempted deal, and the other party that has to counter-sabotage any attempt to drop old legislation by the first.

As Consumatopia writes just above, the Civil Rights Act of 1964 wasn’t written to protect just race and color as protected classes (or even national origin, which could be a proxy for that). It pretty significantly includes sex and religion. So the people who wrote it and voted on it already considered what you’re writing and rejected it in favor of making a framework that would be used for all kinds of discrimination against protected classes.

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stevenjohnson 04.12.15 at 1:41 pm

“Not all bad things should be illegal. Not all good things should be legally mandated.”

One of my great disappointments in reading Sandel’s Justice was his failure to address this. If we concede that morals are how we treat each other, I believe that it is true that all behavior known to be bad should be illlegal and the good behaviors known to be necessary should be mandated. This is not a sweeping statement, inasmuch as it is remarkable how, in a universalist objective/empirical/comparative/historical* perspective, little is positively known about what must be. Further, even when relying on local customary perspective, “law” includes constitution, legislation, administrative regulation and torts, as well as the criminal code. All other matters are aesthetics, which are a matter of personal opinion, of personal value that of their nature can’t successfully be addressed by others I think.

By this woolly, corrigible standard there is no religious liberty that can privilege anyone to evade the law in any of its forms. Private revelations from God are not knowledge, as the disagreements of every epoch attest. Further, the desire to treat God well is not the province of the law which should aim to enforce morals, not purity. So, no, no Christian commercial baker should be allowed to deny a wedding cake for the wedding of a same sex couple without penalty, whether it’s a civil suit, fine, whatever. If their religion holds it more important to offend people than God, they can engage in civil disobedience. Perhaps the population at large will be won over to the position that the state is an instrument of divinity, the Scourge of God against the impure. I hope no one really thinks this is a reasonable position to hold.

As for certain extreme examples that don’t involve defending a God helpless to avenge insults? I think more people than Jewish bakers know the swastika is a symbol of political solidarity with an assault on Jews, a personal insult. Isn’t it generally accepted that abusive customers can be turned away? And the strait-laced photographer confronted with a Wiccan wedding orgy has concerns about laws against pornography and prostitution. I suppose that one could argue whether the offending business should be compelled by lawsuit or whatever to pay for a substitute or surrogate, but that is more a discussion of expedience in the pursuit of justice I think.

*In short, a scientific perspective, unless you’re one who insists on a restrictive definition of the scientific method. Good luck with that.

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bianca steele 04.12.15 at 1:41 pm

Here is my question: would it be “nice” that a group of people have the freedom to use DDOS attacks to coerce a corporation to fire an individual they don’t like? What distinguishes them from ordinary religious believers? They seem very much the same to me in many ways. And I don’t think patriarchy is the most important one, unless we mean by patriarchy something a bit classist, like rich white men get privilege rightly, but it’s racism for the majority of white men to get the same rights.

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Rich Puchalsky 04.12.15 at 1:54 pm

Me: “but I don’t actually read or comment on CT mostly because of the original posts.”

JH: “And it shows! (Sorry, couldn’t resist.)”

And seriously I don’t see what’s wrong with that. Back when the Valve existed there were long periods of time when I wouldn’t read CT at all, because I’m basically interested in arguing with intelligent people, not poring over what some right winger just said. But blogs in general have largely died off because of Twitter and other factors, and I can’t do Twitter — I tend to write in paragraphs — so this is a kind of relict community.

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John Holbo 04.12.15 at 2:36 pm

Oh, I took it you were confessing that, in commenting at CT, you generally do so not with reference to the posts, which you do not like.

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Sebastian H 04.12.15 at 3:50 pm

John, ” I believe there is reason to worry about more serious, pervasive problems. Sebastian, by contrast, says: it’s 2015, seriously, gay people are doing ok by this point.”

You’re wrong. Sebastian, in agreement believes there is a reason to worry about serious pervasive problems regarding societal treatment of gay people. It should be addressed by outlawing discrimination that matters. Firing someone who is gay matters. That should be illegal. (By the way it isn’t illegal in many states). Denying them the right to food, shelter, or medical services is important. That should be addressed. Denying them the right to wedding photographers (isn’t it great that we are calling it a ‘right’?!?) isn’t very important. In fact it might not be important at all.

Consumatopia: “It also wasn’t clear than it didn’t cover those services.”

I don’t agree. I know there is a legal fiction that if a court changes its interpretation 50 years later, we are all supposed to pretend it was always there. Sometimes it was. But often it wasn’t. In this case the Civil Rights Act was pretty clearly not meant to apply to all service providing. There used to be a pretty good distinction between places where you bought services which took place immediately on site (therefore covering restaurants and hotels, which were two of the major areas of focus) and other more specialized and more obviously service-y type things which often did not take place on site and were not covered. It also covered places where you bought goods, which also makes sense because selling physical things doesn’t require much interaction, and making a comprehensive list of important ‘goods’ might change from year to year.

I suggest that this distinction may have been a bit overinclusive by my lights, but not dramatically so. It struck a good balance between broadly covering the important and dangerous categories without going after every bit of trivia.

This distinction has been under constant attack in the courts by those who want to change “public accommodation” to include essentially everyone who has any kind of office, or in fact provides any kind of service in the stream of commerce. This is part of the annoying legal tradition of expanding words so far that they actually get sucked of meaning (if “public accommodation is ‘everything’ why didn’t we just say ‘everything’?)

This plays out at different rates, in different states, which makes an interesting pastiche of different rules.

The original rule made a good deal of sense. If a maid is going to get offended by my friend’s explicit gay art every single time she goes to the house, she should be able to forgoe the income if she wants. And we shouldn’t make her come up with some lie about it so she can’t get sued for discrimination.

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stevenjohnson 04.12.15 at 4:06 pm

A home health nurse offended by the gay art should be able to decline the income from her services.

See how liberal I am!

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Sebastian h 04.12.15 at 4:08 pm

Gosh if only I had mentioned medical services somewhere. Hmmmmm.

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Rich Puchalsky 04.12.15 at 4:42 pm

Sebastian H: “This distinction has been under constant attack in the courts by those who want to change “public accommodation” to include essentially everyone who has any kind of office, or in fact provides any kind of service in the stream of commerce.”

Everyone agrees that “public accommodation” doesn’t cover wholesale business, or businesses providing services to other businesses generally. That’s a whole lot of commerce.

But this just gets back to what I’ve been writing — if you want to clarify or explain anti-discrimination, there’s no way to do so abstractly. If you were starting from a blank slate, then all of these questions are obvious. Why should we treat all kinds of disadvantaged minority groups in the same way? Shouldn’t we make fine distinctions between services that are really important and those that aren’t? Isn’t housing more important than flowers?

But we’re not starting from a blank slate. We’re starting within a system in which major legislative change is very difficult, so most change is legal-interpretive, regulatory, or executive. We’re going to be arguing about the meaning of words from 1964 for a long time, so we have to start out by at least understanding the current meaning of those words.

This is also a large reason why the conflict is over gay marriage, of course. Marriage exists as a social institution with a defined role in government, so we can argue about how to reinterpret those rules.

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Sebastian H 04.12.15 at 6:12 pm

Rich, until about very recently it didn’t cover most off site services. And the word “accommodations” suggests that original idea was correct. Right?

“We’re starting within a system in which major legislative change is very difficult, so most change is legal-interpretive, regulatory, or executive.”

I feel kind of like you’re hiding behind that. Ok, so why don’t we use regulatory or executive change to go back to the less than-a-decade-ago status quo on what counted as enforceable discrimination.

The interesting thing about your argument is the way it mixes historical justifications with hyper-current remedies. We all agree that black people faced levels of discrimination and actual-not-analogy Jim Crow oppression. But if we were to put sexual orientation under your hyper-modern view of the Civil Rights Act, gay people would be able to sue over far more trivial discrimination than black people ever did. Wedding photographers were definitely not public accommodations in the 60s, 70s, 80s, 90s and early 2000s.

It seems weird to use the structural-historical case regarding US discrimination of black people to sidestep into justifying more protection for oppressed minorities that don’t have as deep a structural-historical case.

When John raises objections about various forms of discrimination, you accuse him of lack of attention to historical context.

But you seem to be totally uninterested in applying that to the fact that historically, jobs like ‘wedding photographer’ weren’t covered under statutes like the Civil Rights Act. You don’t seem to be interested in the fact that this change is incredibly recent. You don’t seem to want to talk about whether or not it is a good idea. You don’t seem to understand why it might cause more problems than “come into my open store and buy something”.

Would you be against going back to the idea of “public accommodation” circa 2009?

Would protecting gay people only so much as black people got 1960-2009 represent a horrific step?

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Rich Puchalsky 04.12.15 at 6:52 pm

“Ok, so why don’t we use regulatory or executive change to go back to the less than-a-decade-ago status quo on what counted as enforceable discrimination.”

I could quibble about what really counts as hyper-modern, but OK. Note that the original definition all the way back at the beginning covered restaurants, so the pizza place in Indiana would have been covered from the start unless it was considered to be a caterer (and it never actually catered anything). Since we’re stuck with certain legislative language, we could in theory set back the clock and return to earlier regulatory interpretations. This doesn’t mean that we get to consider the case abstractly: our range of actions is still constrained by how we interpret “public accommodations”.

So why not go back to earlier versions? Well, I don’t want to. And since a significant group of people like me doesn’t want to, we will sabotage any attempt to. Since we will succeed in this, barring some unusual change in U.S. governance, you don’t actually have the ability to do it. So although in an abstract sense you could consider this to be an option, it really isn’t.

Why don’t people want to? There are various reasons, of course, and I couldn’t speak for everyone. I don’t want to because I don’t respect the system at all and I see no reason to make it easier on bigots.

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Bruce Wilder 04.12.15 at 7:35 pm

Sebastian H: It seems weird to use the structural-historical case regarding US discrimination of black people to sidestep into justifying more protection for oppressed minorities that don’t have as deep a structural-historical case.

It does seem weird, in more ways than one, but let’s consider who is using whom, here, as well as the differences in cases.

And, let’s not try to set up a competition between minorities, where there’s some threshold that has to be passed, before aggressions and humiliations can be noticed by the state.

The Civil Rights Revolution, which overthrew Jim Crow segregation, coincided very roughly in history with the Sexual Revolution. Both series of events represented vast and deep reforms of the culture, which go way beyond the provisions of the Civil Rights Act of 1964 with regard to public accommodation or employment.

The structural-historical case of control of sexuality was quite different from the case of racial control — that much is true. And, reactionary conservatives have come to accept or concede, at least in nominal terms, the ethical case for racial non-discrimination, to a greater extent than the case for liberal autonomy in the control of sexuality.

Reactionary conservatives have no visible political program for racial oppression, beyond denial in the face of dozens of police shootings of black men every month. They do have a political program, seeking restrictions on abortion, birth control, pornography, and sex education, as well as restrictions on the availability to same-sex partners of civil marriage.

The leveraging of civil rights non-discrimination principles has been initiated by reactionary conservatives, who are seeking to advance their political program, to (re)instate an oppressive (in liberal terms) regime of state control of sexuality. They are deliberately trying to create a public space in which to dramatically protest and resist the institution of gay marriage, as a salient aspect of that liberal regime, which they oppose.

I don’t think it is unreasonable to resist, in turn, their efforts. And, in particular, I do not think it would make sense to try to quiet them, as if they have a genuine grievance that might be satisfied by small concessions, and not a long-term political program with radical and authoritarian goals. In the actual context, it certainly makes no sense at all to start conceding in any way or to any degree the scope of the anti-discrimination laws. It may be a small matter, but the reactionaries pursuing this political strategy do not intend to stop at small matters.

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Rich Puchalsky 04.12.15 at 7:47 pm

Bruce Wilder said it in a much more respectable fashion than I did, but I’d disagree mildly with this: “The leveraging of civil rights non-discrimination principles has been initiated by reactionary conservatives […]”. I would say that this leveraging began when people who were concerned about discrimination on the basis of sexual orientation “leveraged” or reused an existing legal framework that had been created for other similar forms of discrimination.

If there had been a good faith effort on the part of reactionary conservatives to create a new framework for measures against discrimination on the basis of sexual orientation, perhaps this leveraging wouldn’t have been necessary. But of course no such good faith effort was offered or really possible. So I suppose that one could blame the conservatives again, except that the game of who did it first has limited value.

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parse 04.12.15 at 7:55 pm

Reactionary conservatives have no visible political program for racial oppression, beyond denial in the face of dozens of police shootings of black men every month. They do have a political program, seeking restrictions on abortion, birth control, pornography, and sex education, as well as restrictions on the availability to same-sex partners of civil marriage.

Have you read The New Jim Crow? I think Michelle Alexander argues pretty persuasively that rapidly expanding the system of incarceration during a period when crime was significantly decreasing is a visible, popular, and successful program for racial oppression,

John’s claim that a history of oppression is the basis for anti-discrimination but the justification is that you want to protect people going forward is undercut by the fact that it’s illegal to refuse employment on the basis of race but not on the basis of a prior felony conviction.

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Consumatopia 04.12.15 at 10:24 pm

Here’s something interesting about the 1964 law. It explicitly covered “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment” as public accommodations. Why is that interesting? Those are, after all, on-site services, exactly what Sebastian is talking about.

Consider what that list of services says about the purpose of the law. It is not to guarantee people’s access to services. There is no federal law guaranteeing your access to entertainment services, like some kind of movie theater equivalent of Universal Service goals for telephone networks. And, if anything, talking about a “right” to entertainment is even more dubious than talking about a “right” to wedding services.

No, the purpose was to protect protected classes from harassment and institutional humiliation. To get rid of all the No Negroes signs and Colored sections in commercial establishments. And once we’ve accepted that as the goal, then it doesn’t make sense to limit these protections to essentials like food, shelter, medicine and travel.

I’ve said a number of times I don’t have a firm opinion on what the federal law actually covers. But I do know that the core rationale of the law is completely different than what Sebastian has in mind, and possibly also John H as well.

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Sebastian H 04.12.15 at 10:38 pm

Consumpatopia: you’re misreading me. On site services like restaurants were covered. It is off site personal services (Like wedding photographers) that weren’t.

Is there some particular comment where that wasn’t clear?

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Consumatopia 04.12.15 at 11:29 pm

No, Sebastian, you’re misreading me. I just said “Those are, after all, on-site services, exactly what Sebastian is talking about.” and “I’ve said a number of times I don’t have a firm opinion on what the federal law actually covers.”

What you’re wrong about is the rationale for the law. You think it was about protecting access to services. So, to you, it would make sense to limit it to somehow crucial, necessary, or essential services. Not that you’re saying that the law is limited to these (although it seems to me that back around 180/183 you were saying that), but that you would prefer if the law were limited to these.

But the law wasn’t about guaranteeing access to services at all. No one created a “right” to movie theaters or stadiums. What the law said was that these services, essential or inessential, important or unimportant, aren’t allowed to degrade protected classes by excluding them or segregating them.

On another note, while it may be the case that you think home medical services should be covered by anti-discrimination law, under your interpretation of the 1964 law they actually are not protected. Right? Whether the service is on-site or off-site is orthogonal to how important that service is.

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Sebastian H 04.13.15 at 12:18 am

” No one created a “right” to movie theaters or stadiums. What the law said was that these services, essential or inessential, important or unimportant, aren’t allowed to degrade protected classes by excluding them or segregating them. “

No, the law said that open to the public forums had to really be open to the public (on site).

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Consumatopia 04.13.15 at 12:35 am

“No, the law said that open to the public forums had to really be open to the public (on site).”

Even if that were true, much of what you’ve written about essential or necessary services is completely off-base or besides the point.

But actually, that is not true. They don’t just have to be open to the public. They also can’t be separate but equal. They can’t have White and Colored sections.

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Bruce Wilder 04.13.15 at 1:25 am

Rich Puchalsky @ 310

In the same mild spirit, I would just like to clarify that the Civil Rights Act of 1964, insofar as I know, never before has been at the center of efforts at gay liberation. To the extent that gay activists have sought to add “sexual orientation” to the canonical litany of protected categories in State or Federal law, it seems to me to have been largely a matter of securing the zeitgeist, rather than a way of solving actual problems. The only exception would be hate crimes legislation, where there’s both a good case for the addition and, of course, there’s been active opposition to the addition.

I vaguely recall hearing an early gay activist reminiscing about how a group of his friends in the early 1960s had attempted to create an incident and a legal case, by telling the bartender at New York’s most prominent, high-end gay bar that they were homosexuals, before ordering another round of cocktails. They rather foggily (or probably drunkenly) expected to be refused service, I guess. Of course, the bartender was simply confused by the confession, since almost everyone in the place was pretty obviously gay. The legal problem was that a bar could lose its liquor license, or even be prosecuted as a bawdy house, for catering to gay men, and the immediate practical problem was not to end segregation, but to legalize it, to let gay commercial networks emerge into the light of day and out of the grip of the Mafia. This high-end establishment in lower Manhattan was not a Woolworth’s lunch counter, refusing to serve a tuna sandwich if its “coloreds” sign was not respected. Legal cases were pursued, and street protests — including the famous Stonewall Riots — and sometime in the 1970s it became legal for a gay bar to retain its liquor license, while having its name on a street sign, an ad in a newspaper and even a dance floor. None of these developments had anything much to do with the 1964 Civil Rights Act framework, insofar as I know, at least as a technical legal matter. Spiritually is a different matter.

The political struggle to create and maintain a liberal society is a game of whack-a-mole. There are always going to be political movements assembling to put forward an authoritarian agenda of one kind or another. There’s no single, ideal set of rules, which will let us settle into a neat, self-managing political equilibrium, or even adopt a single and constant set of intermediate ideals as milestones for our Road to Jerusalem. Every means at our disposal is subject to obsolescence and subversion. This, right now, may well be as good as it gets.

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Peter T 04.13.15 at 1:38 am

Could this be solved by a law that required all businesses other than those forbidden to discriminate to accept all customers unless they posted a large sign listing the categories of people to whom they objected? As in “We do not accept Catholic, Jewish or Non-Heterosexual clients”. How could they object to such a requirement?

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Bruce Wilder 04.13.15 at 2:00 am

No shirt, no shoes, no service. Also, no Aussies.

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Peter T 04.13.15 at 2:52 am

And I have a little list, I have a little list….

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John Holbo 04.13.15 at 4:36 am

Sebastian rebuts my attribution of certain beliefs: “You’re wrong. Sebastian, in agreement believes there is a reason to worry about serious pervasive problems regarding societal treatment of gay people. It should be addressed by outlawing discrimination that matters. Firing someone who is gay matters. That should be illegal. (By the way it isn’t illegal in many states). Denying them the right to food, shelter, or medical services is important.”

OK, this is interesting. I guessed wrong – but without intending to misrepresent, I assure you. But now I wonder. If I had thought a bit harder, I would have guessed you would go for medical stuff and housing but not food or hiring/firing. Reason: seriously, it’s 2015, there is no way you can’t find a grocery store that serves gays. And if you get fired, just go down the street to some more enlightened employer. Times are tough, but not that tough. Who wants to work for a homophobe anyway? Medical stuff and housing is more troublesome, so I’m not surprised you are onboard with anti-discrimination there. But what’s the logic, for you, of not allowing at-will firing of gay employees for potentially homophobic reasons? Why is this the state’s proper business, by your lights? But not the cake case? (I’m talking optimal moral, political philosophy wishes, not actual law here. But feel free to bring in actual law, as needed, of course.)

Brief thoughts about some law issues: Rich is convinced I am ignoring history – indeed, that I am intentionally obscuring true lessons of history (for abstract reasons best known to myself) – since discussions of these issues, between people who care a whit for history, should contain more “1964! 1964!” My personal view is that this is factually wrong, as a point about recent US legal history. Big legal victories have mostly come on two fronts: equal protection (14th Amendment) and due process; personal liberty. These are the Constitutional fronts. There has been a lot of non-discrimination legislation passed, of course. But none of it was forced in the wake of, say, an amendment to Title VII of the Civil Rights Act of 1964. Reason: no such amendment, to include gender (as opposed to sex) or sexual orientation has been passed. Nor is it likely to be.

Consumatopia seems to be with Rich on this one: “I’ve said a number of times I don’t have a firm opinion on what the federal law actually covers. But I do know that the core rationale of the law is completely different than what Sebastian has in mind, and possibly also John H as well.”

Yes, to the rationale of the law. No, the text of the law, barring unforeseen amendments. (Seriously, Congress is not going to.) So the law’s rationale can sit-and-spin, for practical, legal purposes.

I think if progress along this front is made, it will probably be made (probably thanks to Justice Kennedy) thanks to the rationale for the 14th Amendment, even though, of course, the Amendment doesn’t mention sexual orientation any more than the Civil Rights Act. See the text of the Romer decision:

https://supreme.justia.com/cases/federal/us/517/620/case.html

“It [Colorado’s mini-DOMA] is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. “[C]lass legislation … [is] obnoxious to the prohibitions of the Fourteenth Amendment …. ” Civil Rights Cases, 109 U. S., at 24.

We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause.”

In short, there is no federal route to forced anti-discrimination except via the 14th Amendment. It goes not by constituting homosexuals as a protected group (which would be consistent with the spirit of the Civil Rights act, but not the letter) but via the consideration that any attempt to make of them an inferior caste will not pass a rational basis test.

I concede that my quoting the Romer decision does not preclude me making stupid legal errors, since I am an amateur. Indeed, it may be that my study of history is, through some irony of Hegelian World-Spirit logic, an attempt to avoid studying history. But I have doubts on the latter score.

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John Holbo 04.13.15 at 4:45 am

One emendation. Consumatopia thinks the motivation for the Civil Rights Act is contrary to what I want. In my above comment I inadvertently agreed to that. I don’t agree at all. I think what I want is congruent with what the Act aims at. But I do think the Act’s motivation is inoperable for present legal purposes. Sexual orientation is not covered.

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ZM 04.13.15 at 4:47 am

John Holbo,

I am confused.

in the OP you said Dreher made a lousy argument that orthodoxy is an unusual community so liberalism should allow unusual orthodox people to practice their ways and if liberals don’t then that is illiberal – but note you said this was a lousy argument

Then you said Dreher made an additional argument that “no exit” was the problem so as long as someone could exit, unusual groups like the orthodox should be able to practice in peace (note practicing seems to include being discriminatory)

Then you problem arises this by saying that aha! Dreher – what about the children? There is no exit for them from their orthodox families.

That was the cliffhanger…

But in the thread you seem to have decided to support Dreher’s 2 arguments, although in the OP you criticized them. ..

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John Holbo 04.13.15 at 5:00 am

“But in the thread you seem to have decided to support Dreher’s 2 arguments”

How so?

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John Holbo 04.13.15 at 5:02 am

If I have somehow utterly reversed myself, I have done so unawares. The thread is about totally different things than the post. Welcome to the internet. But my contributions to the thread don’t contradict the post, that I see.

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ZM 04.13.15 at 5:14 am

1. You said it would be nice because freedom if hoteliers didn’t have to serve black people – this is like Dreger’s first argument that because liberalism orthodox groups should be able to practice discrimination of they like

2. Then you modify this saying 1. is right except in Jim Crow type situations – this is like Dreher saying orthodoxy and its discriminations are only a problem if there is hegemony and no exit

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John Holbo 04.13.15 at 5:36 am

I’m still not seeing it.

I think people should, as much as possible, be free to form up little illiberal communities of consenting individuals. Churches with doctrinal requirements for membership. Bondage dungeons.

I think when those communities infringe on the rights of non-consenting individuals there’s a problem.

I say both things in the post and I say them again (and imply them in various ways) in the thread. Where’s the problem?

I think you also have Dreher wrong somehow. But let’s start with me. Where is the contradiction supposed to be?

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John Holbo 04.13.15 at 5:51 am

OK, let me be super extra explicit and clear. In the case of an orthodox community infringing the rights of non-consenting adults there’s always a problem – conflict is a problem. It is not a priori clear how we want to handle this in every case. In some cases, it will actually be best to allow a bit of minor annoyance to non-orthodox around the edges. But in the case of orthodox communities that infringe the rights of historically oppressed minorities, I’m afraid the orthodox are usually going to be flat out of luck. We will, rightly, protect the minorities. Also, ‘religious liberty’ is really not such a useful term here, I think.

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ZM 04.13.15 at 6:02 am

“I think people should, as much as possible, be free to form up little illiberal communities of consenting individuals. Churches with doctrinal requirements for membership. Bondage dungeons.
I think when those communities infringe on the rights of non-consenting individuals there’s a problem.”

Yes but in the thread you did not just mention churches which have certain exemptions allowing them to discriminate in some ways – and bondage dungeons which are of restricted entry and can’t be located in certain areas of town etc. and are legally treated completely different from the legal treatment of churches.

You mentioned it would be nice if the hotelier could refuse black people if he so pleased, and the reader of Leviticus could refuse gay people and gay divorcees both if he so pleased, because freedom. This is Dreher’s first position – it is illiberal to make orthodox people not discriminate as they please.

Then you modified this by saying – due to Jim Crow however some groups need protections. But Dreher would seem to agree at least theoretically with this from your OP representation of his views since you say he says the trouble is only when discrimination is hegemonic and there is no exit – like Jim Crow laws.

So you seem to agree with Dreher..

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Consumatopia 04.13.15 at 6:11 am

I think we might be almost entirely in agreement as to underlying positions, we just managed to mutually misunderstand each other multiple times.

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Sebastian H 04.13.15 at 6:13 am

John, you wonder why I support discrimination laws for employment and grocery access. You say “Times are tough, but not that tough.” I believe that in fact times are that tough. Losing your job could be completely devastating depending on when it happened. Finding a grocery store in a small town could be difficult and crucial. I’m very much on board with anti-discrimination for necessities. And I believe the economic state of the middle and lower classes is much worse than you appear to suppose.

I wonder if you think I’m defending all of the current cases. The wedding cake case is a close call for me. It is clearly not necessary. But it isn’t all the clearly an off site service instead of a mere good that can be delivered.

The photography case is much clearer to me. It is a service. It is well off the site of the ‘accommodation’. It involves personally forcing an individual who doesn’t support a ceremony to take part in it. I wouldn’t require them to. It really does come close to involuntary servitude–with the caveat that of course they could just give up their profession all together to avoid it. I believe that is asking too much. In fact I don’t like it for the same reason that I don’t like firing someone because they are gay. Under normal circumstances you shouldn’t be forced to give up your ability to earn a livelyhood just because you are flamboyantly Christian.

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John Holbo 04.13.15 at 6:52 am

ZM, maybe this will help. I think it would be nice if Rod Dreher could get what he wants. It doesn’t follow that I agree with him that it should be permissible for him to get what he wants. In fact, I don’t think he should get what he wants.

Also, just to be clear: you keep saying ‘then you modified this’. I see no (major) modifications. I see some changes of subject, in comments. I see me talking about stuff I didn’t mention in the post. But I don’t see modifications to my initial position.

Sebastian, ok that’s clarifying. “And I believe the economic state of the middle and lower classes is much worse than you appear to suppose.” Ah, I just thought that your laissez faire commitments bound you to assume otherwise, rather over-optimistically.

You seem to be inclined to draw a bright line in a place that I think isn’t very bright. This whole on-site/off-site thing. What about a plumber who has to come to the house of a gay couple. That’s off-site of the plumbing home office. It’s kind of intimate. The bathroom. It might really squick out a homophobic plumber to have to fix a gay couple’s toilet. Can he refuse service? I don’t see a major moral difference between people who work for you in their office and people who have to come to your home.

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John Holbo 04.13.15 at 6:54 am

I shouldn’t just assume he merely thinks it’s gross (although I think such feelings are the usual culprits). We can imagine a Christian plumber who thinks gay men living married together is a terrible thing, for all the reasons that gay weddings are allegedly bad. Can he refuse?

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ZM 04.13.15 at 7:24 am

“ZM, maybe this will help. I think it would be nice if Rod Dreher could get what he wants. It doesn’t follow that I agree with him that it should be permissible for him to get what he wants. In fact, I don’t think he should get what he wants.”

Not really, it is contradictory. Why think it would be nice if he could get what he wants and also that he should not get what he wants? The two are inconsistent.

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John Holbo 04.13.15 at 7:31 am

No, it’s not contradictory. Smith wants to have sex with Jones. It would be nice if Smith could have sex with Jones (because he wants to). But Jones does not want to have sex with Smith. Uh oh. We have a problem. Under the circumstances it would be impermissible for Smith to have sex with Jones.

It’s nice when people get what they want, but you can’t always get what you want. You shouldn’t always get what you want.

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ZM 04.13.15 at 7:42 am

That is not an equivalent example at all to discrimation – it is the opposite for Heaven’s sake.

Smith wants to punch Jones on the nose. It would not be nice if Smith punched Jones on the nose. Punching noses is not nice and therefore impermissible.

That is more of an equivalent to discrimination.

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John Holbo 04.13.15 at 7:50 am

“That is not an equivalent example at all to discrimation”

You didn’t ask for an example that was ‘equivalent’ to discrimination. You asked for an example. I gave you one.

As to your example: actually, if Jones wants to be punched on the nose, and they are both consenting adults, I’m fine with that. I don’t think there is anything inherently not nice about Smith wanting to punch Jones in the nose. Maybe they are both into boxing. Punching noses is permissible between consenting adults.

It’s a cliche of liberalism that my freedom to move my fist ends where your nose starts. And that’s right, once you add in the qualifications that permit consenting boxers to have at it. But it is not a truth that follows from some antecedent truth about whether it would be ‘nice’ for me to move my fist that way. Liberalism is not about nice and not-nice desires. It’s about harm and freedom.

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ZM 04.13.15 at 8:09 am

“You didn’t ask for an example that was ‘equivalent’ to discrimination. You asked for an example. I gave you one.’

But the discussion is about discrimination ! of course I wanted an example that was equivalent to discrimination. My example was a regular main street punching on the nose in anger event – regular punching someone on the nose in anger is assault and is not nice.

I did not mean punching on the nose in boxing , anyway I do not like boxing and would be quite happy if it was banned to be honest since it encourages violence and gives people brain damage.

Punching on the nose – in a regular Main Street way – is harmful – that is why it is not nice and is assault and thus can be used as a equivalent to discrimination.

Your boxing example is no use for the issue of discrimination since it involves people who agree to permit another person to harm them and give them a crooked funny looking broken nose. That is not equivalent to discrimination unless you are talking about role-play discrimination in your mock orthodox kink club.

Except the discussion was not talking about role-play discrimination, but real discrimination by shopkeepers and hoteliers.

Now I’m going to cook dinner.

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John Holbo 04.13.15 at 8:21 am

Of course the discussion is about discrimination. That doesn’t mean that everything in the discussion needs to be ‘equivalent’ to discrimination. I don’t even know what that means.

I have explained to you in completely ordinary, plain terms why it makes sense for me to say it would be nice for Dreher to get what he wants, but it’s not permissible. It’s exactly parallel to saying it would be nice for Smith to be able to have sex with Jones, but it’s not permissible (because the realization of the desire is going to create forbidden collisions.) Either you understand the Smith/Jones case or you don’t. If you don’t, I don’t know how to make it any simpler. If you do understand it, then what is there not to understand about my analogy with the Dreher case? If everyone wanted to do what Dreher wants them to want to do, there would be no problems. We would all be orthodox together. (Or, a bit more elaborately: if no gay person wanted to ask someone to do something they don’t want to do, we would all be happy.) Dreher would be very happy. There is nothing whatsoever wrong with him wanting everyone to want that, or urging them to want that. It’s just they don’t actually want it, and he can’t permissibly bring about his desired social organization by discriminatory force.

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ZM 04.13.15 at 8:40 am

(interrupting cooking – must switch off phone after this last comment)

No you are completely on the wrong track.

If the discussion is about Dreher wanting to be able to engage in discrimination it is not very useful to introduce an analogy of Smith wanting to have sex with Jones because discrimination against people is an inately negative category of behaviour. If you changed your example to Smith wants to rape Jones – then rape is also innately negative so that would be an analogy of a sort though in doing so you would offend Dreher no doubt.

Everything anyone could ever possibly want to do is not necessarily nice just because someone wants to do it. Murder is also not nice. Pushing someone off their bicycle is not nice. Bullying someone is not nice.

Your analogy doesn’t work because you don’t seem to understand discrimination is not nice behaviour*

That is how you end up with it would be nice if Dreher could be discriminatory, but discrimination although nice should not be permitted – which is a contradiction

Maybe you could say, it would be nice if Dreher did not want to impermissibly discriminate against people – that solves the whole problem and would be consistent.

* in this meaning of the word. In the meaning where you are a discriminating reader, or quaffer of wine etc that is fine since it is a different meaning.

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John Holbo 04.13.15 at 8:59 am

“Your analogy doesn’t work because you don’t seem to understand discrimination is not nice behaviour.”

No, I don’t understand. I thought it was not-nice iff it was harmful to others/violated their rights. (I also thought this shed some light on permissibility of the reader/wine-drinker cases, by the by.) Evidently I was totally mistaken. Please remove my error by elucidating a foundational theory of the nice/not-nice entirely independent of considerations of harms/rights/consent, so forth.

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John Holbo 04.13.15 at 9:05 am

“it would be nice if Dreher did not want to impermissibly discriminate against people”

Dreher already doesn’t want to impermissibly discriminate against people. Unfortunately, this desire conflicts with some of his other desires, I think.

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ZM 04.13.15 at 10:03 am

“Dreher already doesn’t want to impermissibly discriminate against people. Unfortunately, this desire conflicts with some of his other desires, I think.”

I don’t think that is right. He does want to impermissibly discriminate against people – he just wishes this impermissible discriminating did not happen to be impermissible.

In my forthcoming never to be written book “the un-unified moral history of everything: everything is not nice!” I will be sure to treat the topic of the difference between the different definitions of the word discriminating
(A) discriminating against black and gay people and divorcees and women etc
(B) discriminating between harsh wines that need decanting and an pleasantly aged port, or discriminating in your reading so as to know how to tell good books from in order not to confuse Mrs Beeton with Ben Jonson.

If you just want to know the crux of the difference, it is that the last sort of discrimination (B) is aesthetic – you discriminate to know what is the more beautiful drop of wine or a more beautiful accompaniment for the course of the meal – the first sort (A) is just a bigoted way of making sweeping character judgements on poor grounds. As you can see they are quitedifferent.

The latter form of discrimination is: Nice! being as it enables you to enjoy better wines and read better poems.

The first form of discrimination (which is the subject of this thread) is: Not Nice! being as it just increases bigotry and should not really even be called discrimination because truly bigotry is the opposite of real finer discrimination.

I cannot give you a theory of the nice/not nice dialectic as it has manifested throughout history as you have to weigh up each thing – there is no unified theory

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John Holbo 04.13.15 at 10:45 am

“He does want to impermissibly discriminate against people – he just wishes this impermissible discriminating did not happen to be impermissible.”

Quite right. And I have no problem with that, except I’m afraid he doesn’t realize it, which makes him a bit of a risk vector for bad behavior. (Maybe he’ll read my post!)

Look, ZM, people who are – like you – sure they just KNOW what is ‘nice and not nice’, quite apart from having stepped back and considered what would be a harm/violate someone’s rights, is what got us into this mess. (OK, it isn’t the whole problem. But it didn’t help.) People used to just think it was obvious that being gay was ‘not nice’. Good enough for them! Except it wasn’t. Not then, and so I am going to suggest it might not be good enough now.

Let’s go down into the bondage dungeon. Do you think it is all just ‘not nice’ – hence impermissible? Even if the other party is consenting? In general, you think that no one should be able to establish a group or community or private relationship in which relations are not ‘nice’, by ZM’s standards? Who died and made you the Nice King?

If you aren’t willing to explain why your sense of ‘nice’ makes sense, in terms of harms and rights and consent and all that stuff, why should I believe you? And don’t give me a lot of flim-flam about ‘as it has manifested throughout history’. You sound like Rod Dreher. That is, you sound like the probably quite nice – if you know them – people who got us into this mess.

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Bloix 04.13.15 at 11:05 am

So I take it, John, that you are in favor of legalizing polygamy. After all, if A wants to be in a marriage with B and C, and B and C want to be in marriage with A, what is the reason that the state can refuse to afford them the right to enter into that relationship?

I have asked this question several times over the years, and the response I get is an eye-roll. Sort of like, “obviously it’s different,” but with no explanation why.
And of course it’s not different. Polygamy is a genuine institution that exists around the world today and works just fine.

I actually don’t have any problem with the bar on communal marriages, but I’m not a consenting-adults absolutist. As you apparently are, I’d like to know where come down on this.

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ZM 04.13.15 at 11:18 am

John Holbo you are just being patronizing now.

It was you not me who introduced the term “nice “into this discussion of discrimination – because you said it would be nice if so and so could discriminate – I was just following your choice of words.

You did not define your use of the word nice except to say freedom is nice, therefore being able to discriminate is nice (which is wrong because then being free to murder people or punch them in the nose would be nice too – here I introduce you to my book’s spectrum of not nice!)

Surely then the onus is on you to define what is nice, what is freedom, what makes freedom good, what constitutes a harm, and what exactly are rights …

There are two meanings of impermissible – morally or legally. i remain completely befuddled why you think Dreher being able to discriminate against gay people would be “nice” and why you have “no problem” with him wishing to make this legally permissible – either you think it is morally wrong so you are inconsistent – or you agree with Dreher that homosexuals should be discriminated against.

It is very patronizing to suggest that I am some simple dimwit who can’t read and write and think so just think things are “nice” for no reason :/ like people in the past who discriminated against gay people.

My understanding is people who go to bondage clubs think that they are nice and there is an element of role play involved etc The clubs are regulated so I doubt much injury is legal and they are not allowed to be in certain areas. I think this is fine. If people are actually being hurt badly I do not think it is ok, but that is not my understanding.

I think you drawing analogies between bondage clubs and churches/communities of faith is drawing a long bow though. Churches are not regulated like bondage clubs, are allowed most places, and children can enter them etc They are treated quite differently – and I think you have a bit of an odd idea that they are the same since they both have memberships and cultures.

As I said I would be quite happy if boxing was banned since it is harmful eg brain injury. Also discrimination should be banned (not the wine and reading kind).

Turning the tables – why do you think discrimination is nice? And what do you mean by nice in that sense?

Maybe Dreher can write a blurb for my book ;)

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John Holbo 04.13.15 at 11:34 am

“So I take it, John, that you are in favor of legalizing polygamy.”

Yes, in principle.

“It is very patronizing to suggest that I am some simple dimwit who can’t read and write and think”

ZM, I think ‘don’t imply that your interlocutor is a dimwit’ went out as a conversational norm in this thread some time ago. Certainly you were not obedient to it in penning, say, #343.

“It was you not me who introduced the term “nice “into this discussion of discrimination – because you said it would be nice if so and so could discriminate – I was just following your choice of words.”

Yes, but I used it as a disposable starting point, not as a stubborn fetish.

I think Dreher probably won’t want to blurb your book … but maybe he should! Lessons learned all around!

I’ve got to go out now. More later.

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Vasilis Vassalos 04.13.15 at 12:30 pm

JH:
“Smith wants to have sex with Jones. It would be nice if Smith could have sex with Jones (because he wants to). “
and
” It’s exactly parallel to saying it would be nice for Smith to be able to have sex with Jones”

These two are not the same. Focusing on the original, the first, it’s definitely NOT nice if Smith could have sex with Jones (because he wants to) without taking into account Jones’ desires. In other words, satisfying his desire without taking into account the other person’s desires/needs is definitely NOT nice, in very many philosophies, and definitely in liberalism. It’s not “something nice in the abstract but not allowed because costs”. It is NOT nice. John, I take it you disagree with this. What about it do you disagree with?

And btw, the analogy with discrimination indeed holds: It is not nice if Dreher can discriminate against gays because he wants to, regardless of costs/Jim Crow etc, because it demeans other people. It may be the case that we may want to allow legally some not-nice things perhaps, but this is not-nice for sure (and I also think not one of the not-nice things that should be allowed).

BTW: we’re talking about large parts of Red Amurka wanting to discriminate against gays and you talk about “small illiberal communities”. Small? Seriously? Losing a job in a small town in Texas, it’ll be easy to find another employer? With a crimson G stitched on you?

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Rich Puchalsky 04.13.15 at 12:48 pm

JH: “My personal view is that this is factually wrong, as a point about recent US legal history. Big legal victories have mostly come on two fronts: equal protection (14th Amendment) and due process; personal liberty. These are the Constitutional fronts. There has been a lot of non-discrimination legislation passed, of course. But none of it was forced in the wake of, say, an amendment to Title VII of the Civil Rights Act of 1964. Reason: no such amendment, to include gender (as opposed to sex) or sexual orientation has been passed. Nor is it likely to be.”

Well, but (to quote wiki):

At the start of 2010, the Obama administration included gender identity among the classes protected against discrimination under the authority of the Equal Employment Opportunity Commission (EEOC). It was Obamas’ wish to further attend to LGBT civil rights not only through legislation, but also the executive branch. On July 1, 2011, the EEOC ruled that job discrimination against lesbians, gays and bisexuals constituted a form of sex-stereotyping and thus violated Title VII of the Civil Rights Act of 1964.[4] On April 20, 2012,[4] the EEOC went further and ruled that gender identity was also a protected class under the ban on sex discrimination found in Title VII of the Civil Rights Act of 1964.[5]

This is employment anti-discrimination rather than public accommodation, but I think that it fits what I’ve been asserting in terms of the re-use of exiting frameworks and so on. I don’t know whether the same thing could be done the Federal anti-discrimination in terms of public accommodation.

I agree with Bruce Wilder upthread that LGBTQ anti-discrimination law has been so far more a way of “securing the zeitgeist” than anything else. In general, gay activism in the U.S. has worked through the culture changing before the law changes, not the reverse (as arguably happened with the Civil Rights Movement). So I agree that historically, LGBTQ anti-discrimination law as created by the Civil Rights Movement has not been a driver of events.

However, anti-discrimination law is coming more to the fore now because of the differences between the big city states and between flyover country. The 22 states that have anti-discrimination law in this area are probably those states those need it less than the other states which aren’t going to have it at the state level any time soon.

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Rich Puchalsky 04.13.15 at 12:58 pm

Oops. Should be “re-use of *existing* frameworks and so on.”

I agree that the nice vs not-nice thing was a bad idea from the start. Let’s just take it a step further and say that instead of Smith wanting to have sex with Jones, Smith wants to be Caligula and generally be free to have sex with, torture, and execute everyone around him, not in a BDSM play-acting sense, but in a real and actual non-consensual sense. That’s freedom, right? Smith would be free to do whatever he wants. Isn’t it nice when people get greater freedom?

Against this, John Holbo says that Dreher is really a nice guy, or has desires to do bad things that conflict with other desires to be a nice guy. For which I say as I have through this thread: what’s the evidence for this. He wants to discriminate against gays for religious reasons. It’s obviously nonconsensual. The only evidence that he’s really a nice guy is in John Holbo’s head somewhere.

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Bruce Wilder 04.13.15 at 1:33 pm

If I could turn one side of the table for a moment, I would like to suggest that there might be some inherent problems with running an authoritarian island in a liberal sea, and not just from a liberal, diversity loving perspective.

From a liberal perspective, tolerating a bit of intolerance, in theory, seems like a small price to pay, to maintain . . . I don’t know, a genuine disagreement? But, consider some of the unacknowledged sources of Dreher’s discomfiture.

It is not just that Catholic doctrine holds an abstract conviction disapproving same-sex intercourse as unchaste, but that Catholic authoritarian culture promoted a taboo, or a set of taboos surrounding sexuality. Those taboos were a powerful magic. And now that magic has lost much of its potency.

I do not know if rational philosophy ordinarily takes much notice of magic? It can be powerful stuff, maintaining people in complex shared delusions. Its relation to the concepts and precepts of law can be problematic: intact it can flow thru a rational basis test like an high pressure hydraulic fluid, inflating assumptions into solid seeming foundations. At one time, not so long ago, it seemed perfectly rational to react with powerful revulsion to the notorious homosexual deviant, ready to subvert and betray — worse than a commie really, you could not employ them in government. Any favorable mention of their disgusting practices was obscene and not to be published; even the word, homosexual, was indecent, something that could never be uttered in family-friendly movies. It was no wonder that these pitiable, deformed creatures were found by vice squads in dens of iniquity. We really need to clean up our city. It is shocking how a ring can seduce the young.

In the shroud of such powerful magic, fantastic illusions can be conjured. Liberace can become the most popular star on teevee, and win a libel suit against a major newspaper for noticing the obvious. But, when it fades like the morning fog, horror can revealed: child-abusing religious orders, for example.

I suspect that Dreher is troubled by the fading of the magic in the same way that a 19th monarchist was disappointed to find that people no longer expected the King’s touch would cure scrofula. Or a monetarist is nostalgic for the gold standard.

I am not so enamoured with the liberal order that I do not see a need for a counterweight to the unfounded faith in the capacity of individuals to handle autonomy. The popularity of “gay marriage”, with its bourgeois trappings, may indicate my skepticism is widely shared. That problem requires turning another side of the table, than the one getting Dreher’s attention.

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Trader Joe 04.13.15 at 2:42 pm

Thanks to the many who took a view on my “When does the baker get to not bake?” question….it seems to have sparked quite a line of discussion – informative in both directions.

A thought that occurs to me about the Civil Rights act of 1964 and its applicability in a sexual orientation exclusion is that for the most part, sexuality is something the individual must make known to the “discriminator” in order for it to become a potential vector of discrimination. A black or a woman are identifyable on sight. A person of a certain religion – far less so, but sometimes, and a gay/lesbian person really not at all more often than not.

So in the case of our baker, it would only be at the point that the buyer, say, asked for two grooms on the cake or asked the insription to say “good luck John and Jim” that he would even likely have refused the transaction. Odds are if either John or Jim came in and bought a baguette there’d have been no discussion whatsoever of sexuality and therefore no discrimination whatsoever.

It seems like this transforms the discrimination in an important way – not necessarily to make it “right” or “nice” but that there is an element of political or free speech or free exercise of religion involved on the part of the ‘discriminator’ that is a little different than hanging a sign that says “No blacks, jews or gays” and refusing service on sight.

Not sure what its apropos of, but I find myself wanting the baker to have some rights to decide who to do business with, but at the same time thinking it completely wrong that he can discriminate on what I might view (but others might not) as arbitrary grounds.

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Rich Puchalsky 04.13.15 at 3:17 pm

Trader Joe: “there is an element of political or free speech or free exercise of religion involved on the part of the ‘discriminator’ “

They are permitted to picket funerals and hold up anti-gay signs in a hateful manner, so they can express politics or religion. They are not allowed to deny service to a protected class as part of their political or religious expression. What’s being prohibited is the denial of service to a protected class, not the free speech part.

And as mentioned above, the legal-interpretive / regulatory / executive process has already begun interpreting “sex” in the 1964 original to include sexual orientation and gender presentation. You could either say “oh no, this is legislation without legislators” or you could say “ha ha too bad for you bigots.” I know which one I’m going with.

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TM 04.13.15 at 3:55 pm

Increasingly bizarre (unsurprisingly) but maybe I can make a useful suggestion.

If anybody really thinks it a good use of your time to debate whether or not Dreher should “get what he wants” (JH 332), wouldn’t it be useful if you could start by spelling out what it is that he wants? Because he himself doesn’t anywhere in his overlong tirade make any specific statement about what he wants. All he does is making multiple allusions to what he doesn’t want (essentially, liberalism and tolerance). The rest is guessing. Could it really be that you haven’t noticed that, John, despite spilling thousands of words on Dreher exegesis?

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John Holbo 04.13.15 at 4:06 pm

“Focusing on the original, the first, it’s definitely NOT nice if Smith could have sex with Jones (because he wants to) without taking into account Jones’ desires. In other words, satisfying his desire without taking into account the other person’s desires/needs is definitely NOT nice, in very many philosophies, and definitely in liberalism. It’s not “something nice in the abstract but not allowed because costs”. It is NOT nice. John, I take it you disagree with this. What about it do you disagree with?”

Well, be it noted: YOU added the bit that makes it not-nice. Namely, that Smith wants to have sex with Jones without regard for Jones’ desires. I didn’t say that last bit. My point is that there is nothing bad about wanting to have sex with someone who doesn’t want to have sex with you. Happens all the time. Like Cheap Trick sang: “I want you to want me.” There is nothing not-nice about wanting someone who doesn’t want you to want you. Except that it’s rather frustrating. It’s not immoral or shameful or anything that the state needs to get involved in preventing. Heaven forfend that unrequited desire should become a crime.

For the record I don’t even think it is bad to have fantasies about non-consensual arrangements. I only think it’s bad to act on those fantasies (with people who don’t consent, as opposed to people who consent to act like it’s non-consensual: bondage dungeon or whatever.)

“He wants to discriminate against gays for religious reasons. It’s obviously nonconsensual.”

But he doesn’t want it to be nonconsensual! He has a powerful, positive desire for a certain sort of community. He needs for other people to want things, and to want to want things, that HE wants them to want, and to want to want. You may think it’s weird or freaky, but I honestly think you should respect it. Feeling you need something in your life is not a small thing. But at the same time, he isn’t allowed to force people beyond a certain point.

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TM 04.13.15 at 4:34 pm

Only for the sake of logic: “It would be nice if everybody could get what they want” can be parsed two ways: (1) you are wishing for a universe were everybody only wants what they will also get, or (2) you are wishing for a universe where the laws of logic don’t apply, because logically it wouldn’t be possible if Smith wants sex with Jones but Jones wants no sex with Smith that both get what they want. In either case, I doubt you really think that these hypothetical universes would be “nice”.

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Rich Puchalsky 04.13.15 at 4:53 pm

What you’re writing is silly, JH. So he wants someone to want him. Well, he can want all he likes: no one is stopping him. They are stopping him from the actual action of denying service to a protected class. You dismissed what I’ve written from the beginning about the difference between effects and intentions and how what matters for public policy is what can be observed by saying that you’re not just talking about public policy. But your philosophy seems to be making you very bad about talking about public policy. Since public policy is what will actually affect the people who would be discriminated against, maybe you shouldn’t keep confusing the issues?

I really doubt whether this will help, but I’ll put the first bricks in an affirmative case for why his very intentions are not good. One of the recurring examples used here is the Jewish printer having to print posters for neo-Nazis. Well, one of the critical events in U.S. civil liberties was the ACLU supporting the right of the neo-Nazis to march through Skokie. I supported this decision on the part of the ACLU, as did many Jews. (Many didn’t.) It seemed that one way to show that we were serious about civil liberties was to take a case in which everyone knew why we would naturally be opposed but to do the principled thing anyways.

On the other hand, here is Dreher on the “mosque at ground zero”. No principle at all. His intentions are not good, and I assume that if he got his way he would just move on to bigger and better ways of hurting gay people.

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Vasilis Vassalos 04.13.15 at 5:24 pm

JH: You didn’t write: It’s nice that Smith wants to have sex with Jones. You wrote: “It would be nice if Smith could have sex with Jones (because he wants to). ”

And I say, this is NOT nice. If you think it’s only nice if Jones consents, then you should have written it. Because Smith’s desire is not contingent on Jones’ consent, clearly (you write as much). So, if Smith could have sex with Jones (because he wants to), there is at least one case (of two possible cases) where it would NOT be nice.

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Vasilis Vassalos 04.13.15 at 5:27 pm

“But he doesn’t want it to be nonconsensual! He has a powerful, positive desire for a certain sort of community. He needs for other people to want things, and to want to want things, that HE wants them to want, and to want to want. “

This is nonsensical and/or purports to know what’s in Dreher’s head in a really unreasonable way. We know what Dreher is asking for. And he’s not asking for gays to want to be discriminated against (if there is evidence to the contrary,please provide it).

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Rich Puchalsky 04.13.15 at 5:57 pm

OK, here’s #2 on Rod Dreher’s Greatest Peace and Tolerance Google Hits: Why Don’t the Muslims Like Poor Rod Dreher?

I have to say that I admire his style. If I ever get invited to be on one of the interfaith tolerance things, I’ll make sure to look up their board first and see whether anybody was ever alleged to be guilty of anything. Lots of fun!

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Rich Puchalsky 04.13.15 at 6:15 pm

So many Google hits! Truly Rod Dreher is an unappreciated thinker and it’s a good thing that John Holbo has helped to bring to a greater audience the thoughts of a person who might not otherwise have been heard. Here’s #3, which I chose for it itself being a list of greatest hits in recursive fashion. I particularly liked some of them. According to Dreher, both murder and bisexuality are against the moral order — but he’s not a monster, of course he thinks that murder is much worse. I can really use a lot of this stuff: his technique is very good.

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John Holbo 04.13.15 at 11:18 pm

“Only for the sake of logic: “It would be nice if everybody could get what they want” can be parsed two ways: (1) you are wishing for a universe were everybody only wants what they will also get, or (2) you are wishing for a universe where the laws of logic don’t apply, because logically it wouldn’t be possible if Smith wants sex with Jones but Jones wants no sex with Smith that both get what they want.”

What I am saying is that, ceteris paribus, it is nice if desires can be fulfilled rather than frustrated. It is a rather trivial point. And it is truly the point I was making.

Rich: just to be clear, I don’t agree with Rod Dreher. I realize you don’t read CT posts, as a rule, but this very thread comes at the end of a post in which I discuss Rod Dreher at some length. If you read it you will discover that I don’t think Rod Dreher is right about this stuff. He is not a champion of tolerance and good will, although he wishes he were.

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Rich Puchalsky 04.13.15 at 11:30 pm

I read them: I just generally don’t like them. If you look up above at #16 you’ll see that I quote from both Dreher’s article that you link to and your OP.

I realize that you don’t agree with Dreher, but I never thought that you did. Instead, I thought you were making your own errors in your response to Dreher. You can either blame this all on me or consider that there’s a whole lot of other commenters who’ve written pretty much the same thing as I have.

And no, it isn’t “nice if desires can be fulfilled rather than frustrated” in general, because it depends on what those desires are. Dreher wants to hurt people, not as a game, but as part of society. There’s no way that that can be considered a nice thing to be fulfilled if it somehow didn’t hurt anyone, because part of the desire itself is the desire to really hurt people.

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ZM 04.13.15 at 11:49 pm

“What I am saying is that, ceteris paribus, it is nice if desires can be fulfilled rather than frustrated. It is a rather trivial point. And it is truly the point I was making.”

No, this is not right. Everything is not nice! It is nice when nice desires are fulfilled – if someone wants to murder someone (a harmful non-consensual act) the fulfilment of their desire is not nice! Murder is not nice!

Is desiring to discriminate against gay people and refusing to serve them raspberry and pastry cream tarts is nice? No , this is not nice!

If Smith walks into Jones bakery and asks to have sex with Jones , and Jones is all dude I am not gay sorry it just wouldn’t feel right plus I’m pretty busy baking right now, then it is nice! for Jones the baker not to have to provide sex to Smith.

But if all Smith wants is a raspberry and cream tart – then it is nice! for Jones to provide the pastry as requested for a small charge.

If however Jones said instead – dude you’re gay so I’m not selling you any pastries I’m part of the Dreher Christian club of boycotting bakers don’t you know. i don’t serve divorcees either so don’t feel bad – that would be not nice!

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js. 04.14.15 at 12:57 am

What I am saying is that, ceteris paribus, it is nice if desires can be fulfilled rather than frustrated.

Sure, but if the desires are morally repugnant, then ceteris paribus fails, and insofar as Dreher desires to discriminate against a historically oppressed group, the desire in question is morally repugnant. So in this case, the fulfillment of the desire is not nice even considered by itself. I realize I’m not the first person making this objection (indeed, I’m the third commenter in a row making this objection!), but it’s like you’re reconstructing the sort of utilitarian view Rawls demolished some 57 years ago. Why?

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John Holbo 04.14.15 at 1:18 am

Here is my view of Dreher. He is roughly equal parts:

1) Wishful communitarian.
2) Resentful culture warrior.

1) is wholly permissible but highly hazardous. 2) is permissible, although deplorable, and hazardous. (I don’t think there should be a law against being a man of ressentiment, but it isn’t a lovable characteristic.) The conjunction of 1 & 2, minus self-awareness, is really quite hazardous. If only Rod Dreher were to read my wise post, he might become more self-aware about his problems in this area! Then the hazards of 1) and 2) would be marginally mitigated in his case!

Rich thinks he can refute me by pointing out that Dreher has said awful stuff. Yes, quite. I don’t want to say the stuff Rich points to to prove I am wrong actually proves I am right. That would be indulging confirmation bias. But if things turn out exactly as my model would predict, per Rich’s links, that is not a bad result for my model, I should think.

So, going forward in the thread: if anyone wants to argue against 1) and 2), fine. But I am probably going to ignore any allegations that I don’t believe 1) and 2). I think I do believe them. If you think you have evidence that I don’t believe them, even though I believe I believe them … well, it had better be pretty good evidence. No Monty Python nonsense. And by that I mean: don’t just stick a carrot on my views and say they look like a witch. Make sense?

If you want something controversial to argue against, how about this: I really try not to believe in bad desires. Reason: 1) desires are not voluntary, and I try not to make people culpable for things that are beyond their voluntary control. 2) Desires do not harm other people or violate their rights. Acting on desires does that. So I try to reserve the predicate ‘bad’ for actions.

You may object that wanting to harm other people or violate their rights is a predictor of actually harming other people and violating their rights. I have not overlooked this consideration. The world is a very problematic place. My views partake of some of these problems. We can talk about it if you like.

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John Holbo 04.14.15 at 1:31 am

Here is another point that may help. People may feel that, because 2) is true – Dreher is a resentful culture warrior – he forfeits the right to 1) – i.e. his communitarian vision become poisoned fruit, root and branch. The fact that he wants to build his ideal community through violations of the rights of others means he forfeits all rights to build his community, even to wish to build it. Period. My view is that he can go right on desiring to build that community. But he can’t actually do it in the impermissible way he wants to. It’s forbidden. He should really do some soul-searching, and separate out of the resentful stuff, and get clearer about how it’s not right to discriminate against gay people in the way he wants, even though that is what he wants to do.

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js. 04.14.15 at 1:48 am

I really try not to believe in bad desires. Reason: 1) desires are not voluntary, and I try not to make people culpable for things that are beyond their voluntary control.

This is fine. But then this:

What I am saying is that, ceteris paribus, it is nice if desires can be fulfilled rather than frustrated.

which, note, is a point about the fulfillment of desires—i.e. about actions or outcomes for which actions are necessary—and not about the desires themselves. This, then, really needs to include moral permissibility as part of the ceteris paribus. And whatever may be true of Dreher in general (your (1) and (2)), he does have the desire of discriminating against a historically oppressed group that, if fulfilled, would require morally impermissible actions. So, it’s still not in any way “nice” if this desire of Dreher’s is fulfilled.

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ZM 04.14.15 at 1:49 am

“No Monty Python nonsense. And by that I mean: don’t just stick a carrot on my views and say they like a witch. Make sense?”

If you mean me, this is unfair. What I miss of years of being a philosophy professor to explain the theory of everyday encounters, I make up for with years of customer service where I have seen and can picture people’s faces fall when they are treated poorly or excluded.

You yourself have only a fallback position of discriminating against people is nice, except Jim Crow.

But I can tell you it just is not nice. If there is known personal enmity then I think the onus is on the customer to avoid the bakery (eg Neo-nazis who really like good boiled bagels) , but choosing groups of people and refusing to serve them or serving them poorly just isn’t a nice thing to do, no matter what Leviticus says.

Even criminals should be served in shops after they are let out from gaol.

And your bondage example is the opposite anyway, because the government actually makes them not let people in unless they are over 18 so they are legally obliged to discriminate against young people. Liquor shops are the same. And cigarette vending.

And further I counter your ” is freedom : is good” theory with the idea that our towns and cities and suburbs should be inclusive communities and this is part of the government and councils responsibility – we are taught that the three logics of inclusive planning include redistribution as one element but also recognition of different groups and providing public places for people with (legal) differences to encounter one another. Like bakeries on the high street.

Jones can have a tea party at his house and not invite anyof the gay people in the village, but his shop should be open to the public.

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Rich Puchalsky 04.14.15 at 1:50 am

JH: “The fact that he wants to build his ideal community through violations of the rights of others means he forfeits all rights to build his community, even to wish to build it. “

I wouldn’t say that he can forfeit his right to wish anything. People can wish whatever they want. For instance, I really wish that you would stop this basic confusion that you keep writing between actions and wishes.

But there is no way that his community could actually be built without harming others. What’s more, he realizes this, even though you don’t. He’s a player: you’re a patsy.

I can’t prove that he realizes this any more than you can prove that he doesn’t realize this. I can only point to his actions and writings — that’s what those links are about — and use them as evidence that he is someone who acts and writes as a knowing agent of discrimination, someone for whom part of the attraction of his ideal community is that it would be elevated on a hill built on the social downfall of other people.

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js. 04.14.15 at 1:51 am

Right, I said “the desire in question is morally repugnant” above. I’ll retract that. I don’t think that helps you much tho because you’re predicating niceness of fulfillment, and this is problematic for the reasons mentioned in my last.

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ZM 04.14.15 at 1:54 am

“So I try to reserve the predicate ‘bad’ for actions.”

Yes but as you are not a mind reader with access to Dreher’s deepest thoughts I guess he must have acted on them and written them down for you to read and condense for us John Holbo

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Rich Puchalsky 04.14.15 at 1:59 am

Me: “What’s more, he realizes this, even though you don’t.”

I realize, reading this, that John is bound to misinterpret it. So I’ll unpack it some more.

1. Dreher knows that his ideal community is necessarily based on discriminatory social advantage over other people.

2. You (JH) know that his ideal community involves discriminatory social advantage over other people, but you don’t think that Dreher really knows this. Therefore you think that there are two separable qualities, wishful communitarian and resentful culture warrior.

I’ve met wishful communitarians. Dreher isn’t one.

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John Holbo 04.14.15 at 2:03 am

“If you mean me, this is unfair.”

I was actually thinking of Vasilis’ insistence that I add on the bit that would make what I said wrong, even though I clearly did not want to add that bit, since it would make what I said wrong.

“Yes but as you are not a mind reader with access to Dreher’s deepest thoughts I guess he must have acted on them and written them down for you to read and condense for us John Holbo”

Dude writes a lot! And, as I said in the post, I have become kind of addicted to reading him. I confess: my access to Dreher’s thoughts is all through his writings and not down to any kind of telepathy or ESP powers. I make no claim to the latter.

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ZM 04.14.15 at 2:09 am

If Dreher wants to have a farming community like the Amish without gay people maybe that is alright. But although gay people can’t be in the community due to doctrinal differences, the community should still sell fruit and vegetables to gay customers at the farm gate. As well as my suggestion for being organic farmers so as to have top end produce, catering to the pink dollar will also help the communitarian Christian farmers be profitable and last for the long run.

And who knows perhaps the Holy Spirit will move in mysterious ways and in encountering gay people at the farm gate they will update their doctrines.

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John Holbo 04.14.15 at 2:11 am

“someone for whom part of the attraction of his ideal community is that it would be elevated on a hill built on the social downfall of other people.”

If you really want to believe this, you are going to have to suck it up and agree to agree with me about at least something, Rich. Namely, Dreher is a resentful culture warrior.

For the rest, I think we’ll have to agree to disagree, Rich. But I do hope you someday get to meet the man and deliver your message.

“I’ve met wishful communitarians! And you, sir, are no true, wishful communitarian!”

You may be right. You may be right.

Other things to do today. Probably won’t be back for hours. I honestly do feel that I’ve kind of said my piece and am starting to repeat myself.

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John Holbo 04.14.15 at 2:14 am

“And who knows perhaps the Holy Spirit will move in mysterious ways and in encountering gay people at the farm gate they will update their doctrines.”

I hope so too!

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Tyrone Slothrop 04.14.15 at 6:14 am

Dude writes a lot! And, as I said in the post, I have become kind of addicted to reading him.

I have too. I’ve long been fascinated by exposure to the thought’s of believers, and when you add in the turmoil—inconstancy of faith, familial alienation, personal health issues, apostasy of one tradition to embrace that of another, bouts of deep personal depression, the whole you can’t go home again truism he was impactfully forced to understand—that has been confessed by Dreher over the long years, it makes it all that much more compelling.

He also has developed a quite diverse community of commenters, and his political/cultural posts, particularly those on gay rights, ofttimes attract a large majority of argumentative traffic from liberal/progressive posters. The broad admixture of points of view in all categories is impressive, and it’s to Dreher’s credit that he continuously allows, even encourages, this spread in the face of semi-routine complaints from his core traditional followers and the sometimes harsh and dismissive volleys launched by those who oppose his expressed opinions and beliefs.

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Salem 04.14.15 at 11:04 am

Jones can have a tea party at his house and not invite any of the gay people in the village, but his shop should be open to the public.

If Dreher wants to have a farming community like the Amish without gay people maybe that is alright. But although gay people can’t be in the community due to doctrinal differences, the community should still sell fruit and vegetables to gay customers at the farm gate.

These are the kind of claims I don’t understand. They don’t seem to be predicated on any theory of harm – gay people might suffer far more, both materially and emotionally, from being excluded from the tea club or the farming community than from being excluded from the commercial transactions. After all, the latter only provide easily replaceable commodities whereas the former provide unique experiences. If Jones won’t sell you tea, no problem, go to the next shop. But maybe Jones’s tea party is where all the movers and shakers of the town rub shoulders, so his refusal to invite you does huge harm. Maybe you lived your whole life in the farming community, then realised you were gay, and them excluding you is going to cause huge dislocation in your life. And you may say these are edge cases – and maybe they are! – but they seem far more likely than any actual harm from the refusal to engage in commercial transactions*.

Yet we have the seemingly bizarre position, repeatedly pushed in this thread, that people may discriminate when it’s most harmful, but may not discriminate when it’s most harmless. It doesn’t seem based on any difference in the discriminator’s intent, either. It looks to me like people are thinking “Well, of course I can’t force Jones to invite people to his party, that’s his own business, but if he’s engaged in trade then all bets are off.” But that seems clearly wrong. Why does Jones lose his rights when he wants to engage in commerce? It seems based on nothing more than prejudice against commercial transactions.

My own position would call for much more scepticism about discrimination by non-commercial communities – I’m not at all sure that it’s permissible for Dreher’s farming community to kick out gay members. But I’d also be much more permissive of commercial discrimination – I really don’t think it’s anyone else’s business who they refuse to sell their fruit and vegetables to.

* Maybe things like medical and other essential services are different, as Sebastian H suggested above – there you really might imagine serious harm from exclusion.

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name withheld by flying saucer 04.14.15 at 11:39 am

1. There will be NO community without gay people, they will just have to hide themselves, or go into deep self-denial. The real problem I see with all this blather is the effects of anti-gay commerce on little kids passing by: why won’t they let me in, Mommy? Children should NOT be made to doubt themselves on any account of race, creed, color or sex. Hetero children are TAUGHT that homo is bad; they don’t reason it themselves. Therefore commercial discrimination should be outlawed.

More likely to me is that we are headed into a near-future with so many new “ethical” questions — genetic re-editing, 3- and 4-parent babies, full-head transplants, flapping bio-wings attached to your back to let you fly in the sky like a cyborg angel — that soon, very soon indeed, homosexuality will be DEFENDED by religious fundamentalists as a simple traditional virtue from the days of yore…

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ZM 04.14.15 at 11:47 am

Are you really truly arguing the government needs to legislate for tea party invitations?

This is going to really increase the bureaucracy.

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Rich Puchalsky 04.14.15 at 11:53 am

Salem: “These are the kind of claims I don’t understand. They don’t seem to be predicated on any theory of harm”

Well, that’s one of the main things I’ve been writing in this thread — there is no abstract theory, of harm or otherwise, that can be used to clarify this in the case of the U.S. It’s all historically contingent.

But your intuition is wrong when you refer to commercial transactions as providing “easily replaceable commodities”. You seem to be thinking of discrimination as consisting only of the foibles of individuals. But it’s not: it’s really social. Once it becomes permissible, it’s easy for it to affect all businesses in a small town. After all, there are far more prejudiced people than there are minorities, so the businesses lose more business by not putting up a “no gays allowed” sign than they gain.

Salem: “It doesn’t seem based on any difference in the discriminator’s intent, either. “

As I’ve also said a lot, intent isn’t observable. Even those laws that refer to intent really refer to behavior as a proxy for intent. But in fact anti-discrimination law involves some analysis of abstract business policies to see whether they really make sense, given what they are supposed to be for (i.e. given your claimed intent). For instance, a business policy banning head scarves but not other head coverings would be understood to be discriminatory against religion because it excludes members of a protected class for no reason that seems to apply to everyone.

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Layman 04.14.15 at 12:27 pm

“If you want something controversial to argue against, how about this: I really try not to believe in bad desires. Reason: 1) desires are not voluntary, and I try not to make people culpable for things that are beyond their voluntary control. 2) Desires do not harm other people or violate their rights. Acting on desires does that. So I try to reserve the predicate ‘bad’ for actions.”

I can’t see how this helps in practice. Talking and writing are attempts to encourage others to adopt one’s views, and bring one’s desires into being. When Dreher writes what we writes, he’s acting on his desires. Otherwise, you’d have no idea what those desires were. If you can determine his desires, they’re actions; if not, they’re a sort of Dreher’s Cat, which may or may not exist at all.

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Salem 04.14.15 at 12:46 pm

You seem to be thinking of discrimination as consisting only of the foibles of individuals. But it’s not: it’s really social. Once it becomes permissible, it’s easy for it to affect all businesses in a small town. After all, there are far more prejudiced people than there are minorities, so the businesses lose more business by not putting up a “no gays allowed” sign than they gain.

I don’t recall saying that. I agree entirely that discrimination is social. But everything you say seems to support, not undermine, my point. If prejudice is so widespread that neutral businesses feel pressured to discriminate, then that same prejudice will shut the door to social engagements even more strongly, and it will soon affect all social engagements in a small town. Indeed, there was great pressure on the commercial aspects of Jim Crow, because businesses wanted to make money (e.g. East Louisiana Railroad were quite happy to sell Mr. Plessy a ticket). But there was not nearly the same pressure on the social side of Jim Crow. Indeed, to this very day there are plenty of golf clubs, country clubs, churches, etc, which are effectively whites-only. There are many parts of the US where a person facing discrimination may find themselves effectively shut out of huge areas of social engagement, and I regard this as a far greater harm than the commercial discrimination.

Now you’re right that if no-one will trade with you, that is a much more serious harm than one person refusing. But firstly, that doesn’t apply here; gay people do not have a general problem that no-one will cater their wedding. And secondly, if your point is that just in case that ever happens, commercial engagements must be open to all, then I’d ask why the same principle doesn’t apply to social relations. Just in case no-one will let me into their primitivist community, each primitivist community is obliged to accept me. And the obligation should be stronger on the community, because if you won’t sell me vegetables, vegetables from the next store are a good substitute, but the next community over is not a good substitute for the one in which I grew up in and holds all my social bonds.

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Rich Puchalsky 04.14.15 at 1:09 pm

Salem: “gay people do not have a general problem that no-one will cater their wedding”

They don’t *now*. But again, as mentioned upthread gay activism in the U.S. has progressed through culture first and laws second. In the 22 states in which state laws against anti-gay discrimination exist, those laws are less likely to be needed. In the other states gays don’t have this problem of wedding catering because, generally, gay people don’t have legal weddings. Here’s a map of which states have these laws. Notice that they are grouped into regions.

As for restrictions on actually separatist communities — again, I could try to come up with an abstract rule to cover this, but I don’t think that any such rule would really clarify as much as history does. The U.S. had these kinds of communities from the beginning, communities that fairly convincingly said that they had to be able to run their own internal affairs, within limits, according to their rules or they would lose what was distinctive about their community. Membership is generally understood to be the most important of these controls. These communities are tolerated because they genuinely are not trying to make their rules to apply to people outside the community, which is what distinguishes them from people like Dreher. (And which should be a warning sign for those ultra-Orthodox Jews who think that they can travel by commercial plane and still get everyone to honor their seating rules. They are courting trouble.)

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Salem 04.14.15 at 1:38 pm

The U.S. had these kinds of communities from the beginning, communities that fairly convincingly said that they had to be able to run their own internal affairs, within limits, according to their rules or they would lose what was distinctive about their community. Membership is generally understood to be the most important of these controls. These communities are tolerated because they genuinely are not trying to make their rules to apply to people outside the community, which is what distinguishes them from people like Dreher.

But it’s not at all clear that these communities shouldn’t lose some of their distinctiveness. To the extent that you believe that such communities aren’t trying to make their rules apply to people outside the community, that is equally true of commercial engagements – after all, the pizza parlour isn’t trying to prevent gays from getting married, they just won’t do the catering.

Now, there’s an extent to which the pizza parlour’s rules do apply to non-members – we won’t have commerce with you if you don’t meet our criteria. But that’s equally true for the religious community – we won’t socialise with you if you don’t meet our criteria. And the latter is far more devastating. Look, for example, at the Lost boys excluded from Mormon religious groups.

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faustusnotes 04.14.15 at 1:40 pm

Coming late to this thread but I would like to push back against Sebastian H’s idea that it’s okay for people to discriminate because we can also fight back through vocal opposition and shaming.

This only works if you are from a community with sufficient public respect that there is any shame in treating you badly. Most of the time, the communities that are vulnerable to this discrimination are vulnerable for a reason …

… and also, I don’t want to live in a world where everyone’s bullshit gets argued out publicly. It’s exhausting and confrontational and these little fights all break down our community. Just suck it up and sell me the damn cake, okay? In exchange I won’t make a fuss about how stupid your religion is, and I won’t raise a movement to force your church to pay taxes and stay away from my school[1].

Also why are religious people so damn special that they get to discriminate and I don’t? Why is being an arsehole only legally sanctioned for the superstitious?


fn1: Yes Sebastian I know you aren’t religious; this “you” is rhetorical.

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TM 04.14.15 at 1:45 pm

JH 362: “What I am saying is that, ceteris paribus, it is nice if desires can be fulfilled rather than frustrated. It is a rather trivial point. And it is truly the point I was making.”

I know what you were saying, and I said that your statement (if taken seriously and examined for its implications) is illogical.

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TM 04.14.15 at 1:52 pm

JH: “Dude writes a lot! And, as I said in the post, I have become kind of addicted to reading him.”

Have you tried glue sniffing?

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Rich Puchalsky 04.14.15 at 1:57 pm

Saalem: “But it’s not at all clear that these communities shouldn’t lose some of their distinctiveness. To the extent that you believe that such communities aren’t trying to make their rules apply to people outside the community, that is equally true of commercial engagements”

There’s a right of association, which necessarily implies a right of disassociation. People who go into retail commerce are considered to have disavowed this right with respect to their business and to have to go by the rules of larger society. That’s my best shot at explaining it in an abstract sense.

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Jerry Vinokurov 04.14.15 at 2:09 pm

There’s a right of association, which necessarily implies a right of disassociation. People who go into retail commerce are considered to have disavowed this right with respect to their business and to have to go by the rules of larger society. That’s my best shot at explaining it in an abstract sense.

This exactly. There’s a sensible reason to have a distinction between private-facing and public-facing organizations. There’s no practically enforceable mechanism of making people be your friend or invite you to their parties; there is a practical enforcement mechanism for interactions in public-facing situations like markets. In total, restricting people from interacting with markets and public institutions is by far more harmful than restricting them from interacting with your private group of friends, so that should be our primary concern.

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Salem 04.14.15 at 2:29 pm

There’s a right of association, which necessarily implies a right of disassociation.

Agreed, but if rights of association are not unlimited, neither are rights of disassociation.

People who go into retail commerce are considered to have disavowed this right with respect to their business

So we’re right back to the absurd and indefensible “Jones loses his rights because he engages in commerce.” Is this anything more than prejudice against commercial transactions?

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ZM 04.14.15 at 2:35 pm

Shops are part of the public sphere, so all the public can be served in shops. Houses are private residences so usually they are not open to the general public unless someone is having an open house,

I suppose if you want the government to ensure everyone can go to any tea party in town you could make a law that people put up a public notice informing about their tea party and it is first served best dressed. When the house is full and the tea pots drained with only tea leaf reading to go, there are no spots for latecomers.

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bianca steele 04.14.15 at 2:41 pm

We have (in the US at least) laws protecting individuals within communities like the Amish. I don’t think they can hold gay people captive and refuse to allow them to leave, so they can be treated in the way the community thinks is correct. That’s still kidnapping, illegal imprisonment, etc. They have to have schools for certain age groups and the schools have to teach certain things. They generally have to teach English, though historically some groups have been allowed to teach in German and possibly Swedish. They have to obey child labor laws, though there are exceptions for farmers and family businesses.

All his doesn’t prevent two things: people who leave may not be prepared for life on the outside, and this effectively makes it very difficult for them to walk away, which can be a big problem in some communities, and people who don’t want to leave but do want to participate in new (not existent 100 years ago) opportunities like college or city life may find it difficult. It’s in some ways easier if you see yourself as a minority, like the Amish or a group that has always rejected “the world.” If you believe your minority religion requires you to be part of the majority culture, and can (like the business gospel) make you successful in the majority culture, and that you must be successful to obey your religion, you can run into problems.

There are ways to resolve the issue. You can say that the majority culture is different for the poor, and so the poor can be part of the majority culture by staying away from the institutions and people who wield power. You can go Aristotelian or something along those lines, and say there are lots of relevant subcultures.

Or you can go totalitarian and say your religion must be in charge. But then you don’t get to be a minority religion that dissents from the people in charge, I’d think (not unless you make super-subtle distinctions between law and society and state). And you have all the usual issues about how to describe dissenters who claim the mantle of the original anti-power religion.

But the people Dreher is talking about seem never to have thought of themselves as a minority religion. They got their special farming privileges and they became rich in business and were elected mayor and so on, without confronting he sense that religion was opposed to that. And now for some mysterious reason they’ve become aware of a conflict, and Dreher doesn’t seem to know whether he wants them to embrace totalitarianism, or embrace the idea that they can only be successful in their smaller community. But damn if he isn’t going to go all out arguing for both of them.

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bianca steele 04.14.15 at 2:47 pm

Now what happens when you have a community that’s not as compact as the Amish, and they have a large town, and they put a (federally funded) land grant university there, and people from out of state come, and national corporations with managers from out of state or abroad, and a lot of people start thinking it would have been better to be like the Amish and to have made it known that all those people aren’t welcome. Maybe the newcomers would like to be nice. But really I don’t see the solution if suddenly the “locals” think going Amish is the only thing that will make them happy.

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bianca steele 04.14.15 at 2:52 pm

And–sorry, this was supposed to be in the other comment–the Catholic Church is in the US historically put off a similar moment of reckoning in working class communities by setting up parishes for immigrants on ethnic lines, so people didn’t have to integrate into a multiethnic society until some later date, if ever. But to a large extent, people who stay in, or near, the city can still feel like they’re living in an organic community (the opposite than for farm communities), as long as they can avoid certain snares.

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Jerry Vinokurov 04.14.15 at 2:56 pm

There’s no “prejudice” against commercial transactions; commercial transactions can be an incredibly powerful tool for discrimination, much more powerful than private groups.

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Rich Puchalsky 04.14.15 at 3:03 pm

“Is this anything more than prejudice against commercial transactions?”

Well, yes. I’d say that it has to do with how the liberal political order creates the capitalist order. Markets don’t just exist without states, or at any rate without some kind of enforcement mechanism which in contemporary societies is a state function. A large part of the function of the state is to set up state-wide rules for markets. In a sense the market is one of the centers of liberal society and it’s one of the places where general societal rules are most inescapable.

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Trader Joe 04.14.15 at 3:04 pm

“Is this anything more than prejudice against commercial transactions?”

Think of it like a responsibility of being allowed to conduct commerce. You serve everyone who walks in regardless of race, sex, religion, orientation etc. and the police make sure the angry mob doesn’t burn down your building, a fire department is available if it does and that there are sidewalks out front and roads to drive on and an efficiently functioning government to educate your customers childeren, allocate taxes and maintain order + much, much more.

Most people find it a pretty good deal, even if its not perfect in all the particulars. Especially since, for the vast majority of all commercial transactions, none of those factors (race, sex, religion etc.) makes the least bit of difference.

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parse 04.14.15 at 3:08 pm

Shops are part of the public sphere, so all the public can be served in shops. Houses are private residences so usually they are not open to the general public unless someone is having an open house,

But this doesn’t seem like an answer to Salem’s question about why the law treats the entities this way. You can say “It’s MY house, so you can’t come in,” but you can’t say it’s MY store so you can’t come in.” If someone asks why that its, you can’t say “Because you have to allow people in your store but not your house,” because that’s just re-stating the question.

And Salem’s point was that one likely answer might be “You have to let them in your store because barring them from your store is more harmful that barring them from your house.” But then Salem presented evidence that it’s not at all clear that such is the case–it may be more harmful to keep people out of your house.

Sebastian H seems to agree that harm should be adopted as the measure; we should ban discrimination that keeps people from accessing essential services, but otherwise should allow discrimination. There seems to be considerable push back against this, although much of it has taken the form of trying to demonstrate there there’s considerable harm done when you deny non-essential services. Is it the case that people would be OK with making the measure of harm done the criteria for legal bans on discrimination if we were able to accurately calibrate the hurt that’s done by various forms?

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parse 04.14.15 at 3:11 pm

And actually, as I understand it, it’s not legally the case that all the public can be served in shops. Isn’t discrimination against protected classes the only kind that is illegal? Aren’t you allowed to have a shop that doesn’t serve left-handed people, as John suggested?

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Lynn Gazis-Sax 04.14.15 at 3:11 pm

@386: “… and also, I don’t want to live in a world where everyone’s bullshit gets argued out publicly.”

This is also one of the things that I find really annoying about the particular mechanism being proposed, here, for protecting wedding cake sellers. As I understand it, Dreher wants to defend the passing of religious freedom laws, phrased similarly to how they were phrased when they were intended to protect things like the use of peyote in religious rituals, but with a couple of tweaks to make it easier to propose applying them to discrimination cases, and with a bunch of accompanying hoopla about how they will now protect people who don’t want to provide cake or pizza to same-sex weddings. He defends these laws, while arguing that they won’t enable discrimination, apparently because courts will surely know, when cases are taken to them, to draw the line just where Dreher does (faith still can’t trump laws about discrimination by race, and, perhaps, whatever kind of discrimination by sexual orientation Dreher might consider sufficiently burdensome that an anti-discrimination law can reasonably be imposed, but definitely wedding services supplied for same-sex marriages should be exempted).

But the only way that we find out how courts apply these laws to discrimination cases is for lots of people to decide that they’d win a case in court, and therefore refuse services and say that it’s a faith-based decision, and for lots of other people to decide that they wouldn’t, and take them to court. And perhaps the end result is that no one gets to discriminate (after all, the religious freedom laws do still have the same old language about weighing exemptions against the government’s compelling interest in requiring something, and the government does have a compelling interest in anti-discrimination laws). Or perhaps the end result is that a lot more people get to discriminate than just wedding cake sellers (particularly if the judges involved turn out themselves to disapprove of same-sex marriage). Or maybe the boundary gets set precisely at wedding cakes. But either way, it only gets set when a lot of bullshit gets argued out in court at considerable expense.

Now, in the case of odds and ends like peyote use, or requirements about hair or beards or head coverings or what not, throwing the matter to courts may be necessary, since we can’t predict all the individual harmless requirements that particular faiths may have, that may bump up against government rules (and, even if we want to minimize government rules against harmless things, some people are in circumstances where they’re subject to government regulation above and beyond just the laws that apply to everyone).

But the conflict over wedding cakes is one that we can predict, and where we already know the relative weights of things (even if Dreher and I might not agree on what those relative weights are). We know what benefit is supplied by anti-discrimination laws, and we know what objections are raised. So any exemptions should be argued out explicitly in the legislature, where we can be clear about where the heck we want to draw the line, not thrown to the courts to draw the line where they will. Then, perhaps, a legislature in a state that doesn’t yet have anti-discrimination laws, as was the case in Utah, can, like Utah, add sexual orientation as a protected class for employment and residence but explicitly not make it a general protected class. Or, perhaps, in a law that otherwise makes sexual orientation a protected class altogether, we can allow exemptions for small scale creative services that can be seen as matters of free speech, which could cover photography and, I suppose, the decorations and writing on the cake (though it’s hard for me to see why refusing to sell the cake itself should deserve special protection). At any rate, whatever the final law passed, it would have to be clearer about who can get away with what than “you can discriminate if it’s required by your faith and if we don’t think the loss of this particular service is actually a problem,” which seems to be the alternative actually being proposed.

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parse 04.14.15 at 3:19 pm

Think of it like a responsibility of being allowed to conduct commerce. You serve everyone who walks in regardless of race, sex, religion, orientation etc. and the police make sure the angry mob doesn’t burn down your building, a fire department is available if it does and that there are sidewalks out front and roads to drive on and an efficiently functioning government to educate your customers childeren, allocate taxes and maintain order + much, much more.

Won’t the police do the same for your private club or intentional community?

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Lynn Gazis-Sax 04.14.15 at 3:19 pm

@399: “You can say “It’s MY house, so you can’t come in,” but you can’t say it’s MY store so you can’t come in.” If someone asks why that its, you can’t say “Because you have to allow people in your store but not your house,” because that’s just re-stating the question.”

Because harm A is being weighed against harm B. It may be that a given person thinks that the greatest harm of all is done if I refuse to have sex with him, but I am allowed to do so, even if my reasons for preferring sex with someone else to sex with him are obnoxious and bigoted, because in that case the harm of my being compelled to have sex with someone I don’t want to (for however obnoxious a reason) are so great that they outweigh any harm that could be done to him by losing me as a possible sex partner. Having someone in my house that I don’t want there is less intrusive than having someone in my body that I don’t want there, but still more intrusive than having someone in my shop that I don’t want there (after all, my house is a place where I’d normally only invite people I particularly like, for mutual pleasure, while my shop is a place where I’d normally invite the whole world, because it’s hard to make a living off only your particular friends). So the harm of my being required to have people I don’t want in my house is greater than the harm of having people I don’t want (not because of any misbehavior on their part but simply because I don’t like their kind of people) in my shop. Meanwhile, the harm of being excluded from public venues has been demonstrated to be great, for precisely the groups that are protected categories, because they have suffered from harm as a result of organized discrimination in the past. So their harm outweighs the harm suffered by the would be discriminatory shopkeeper.

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Rich Puchalsky 04.14.15 at 3:20 pm

“This is also one of the things that I find really annoying about the particular mechanism being proposed, here, for protecting wedding cake sellers.”

It’s not really a mechanism for protecting wedding cake sellers, it’s a mechanism for enriching Dreher and other right wing tribal leaders. Whether it’s actually going to work in the end is not important, but it will keep Dreher in funds for some time.

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Trader Joe 04.14.15 at 3:32 pm

“Won’t the police do the same for your private club or intentional community?”
Yes, they most certainly will, as I’m sure you know.

But those organizations are not established or recognized within the framework of commerce laws. While there are some exceptions, their responsibilities are established within the scope of not-for-profit/charitable organizations. I think that would be another thread entirely to discuss how the rules and responsibilities of not-for-profits should be considered since, by volume, the vast majority of these are political organizations.

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faustusnotes 04.14.15 at 3:41 pm

I think the idea that businesses should be allowed to serve whoever they want and refuse whoever they want on the basis that otherwise “commerce” is being discriminated against is only a viable fantasy if accompanied by the fantasy that only a few people think in this abhorrent way, and so it won’t be a problem.

This is charmingly naive, especially in the context of modern America. In reality if this principle were the bedrock of personal liberty that defined the commercial space in which we all shop, certain classes of people (i.e. black people) would find themselves being ejected from about 50% of the shops they tried to enter.

It’s precisely because we have these laws that idiots like Dreher are able to pretend that if we didn’t have these laws only a few people would discriminate, because most people are too decent or too embarrassed to behave this way. In reality most people are being constrained by these laws.

I live in a country that doesn’t have these laws. This country abounds with women-only businesses, special deals for women, men’s days at certain businesses, and most famously brothels and landlords that openly state that foreigners are not welcome. When I first arrived here in 2006 the real estate agents had “no dogs or foreigners” boxes on the forms advertising apartments (literally: a box that said yes or no to dogs, and a box that said yes or no to foreigners). Nobody was ashamed of this, or even surprised by it.

I’m going to go out on a limb here and say that the country I live in is considerably less racist towards foreigners than some parts of America are towards black people. So I think I can guess what would happen if “commerce” was given the unrestricted right to discriminate.

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Rich Puchalsky 04.14.15 at 3:59 pm

faustusnotes, I got the impression that this wasn’t about less anti-discrimination law for businesses, but rather more anti-discrimination law for non-businesses. Although I could be wrong.

I can only repeat that there is no ahistorical way to disentangle this historical tangle, no way to implement a general solution even if found, and no way to settle on an abstract solution among the people here that includes the reason that we need a solution in the first place — namely, that some people want to discriminate in this way. It’s a liberal conceit to think that the person in one’s head is a fine substitute for the actual person, because after all if they thought reasonably they’d think just like a liberal. But some people really do think differently, they have political power and can’t be ignored, and they aren’t here.

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parse 04.14.15 at 5:38 pm

But those organizations are not established or recognized within the framework of commerce laws.

I thought that the point you were making that businesses incurred responsibility by being engaged in commerce because they gained police and fire protection, and the anti-discrimination requirement was something they did in return for those services. But if non-commercial entities receive the same services, that doesn’t provide an explanation of why the commercial entities incur the responsibility not to discriminate. You are just repeating that private entities have different responsibilities without saying why.

Lynn Gazis-Sax, I don’t see any evidence that this measuring competing harms goes on, or is even possible. Do people who complain about being discriminated against have to demonstrate what harm they suffered from the refusal?

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ZM 04.15.15 at 2:52 am

parse,

ZM”Shops are part of the public sphere, so all the public can be served in shops. Houses are private residences so usually they are not open to the general public unless someone is having an open house,

parse: But this doesn’t seem like an answer to Salem’s question about why the law treats the entities this way. You can say “It’s MY house, so you can’t come in,” but you can’t say it’s MY store so you can’t come in.” If someone asks why that its, you can’t say “Because you have to allow people in your store but not your house,” because that’s just re-stating the question.”

I was just giving a descriptive answer. There are cultures that live in shared long houses so they do not have private residences just male/female+young, and other sorts of differences in other cultures.

I am not sure exactly how the public/private division of space developed in Europe, I have only read about this division of social space inthe 18-19th C because women were expected to stay in the private realm so that is why you have suffragettes

http://youtu.be/2vsrCZQlA0o

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Barry 04.15.15 at 12:21 pm

Rich Puchalsky 04.14.15 at 3:59 pm

“faustusnotes, I got the impression that this wasn’t about less anti-discrimination law for businesses, but rather more anti-discrimination law for non-businesses. Although I could be wrong.”

What does that mean?

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Rich Puchalsky 04.15.15 at 12:24 pm

“What does that mean?”

I thought that Salem was concerned about the discrimination that non-business entities do, and wanted to prevent them from discriminating, rather than using their case as a pretext to argue that businesses should be allowed to discriminate more. But of course that argument could be used in either direction.

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Salem 04.15.15 at 12:45 pm

As I said above, I’m concerned about both. I want stronger measures to prevent non-commercial discrimination, but I would also like to relax (though not abolish) the rules of forced association for commercial transactions.

Dreher’s farming community shouldn’t be allowed to kick out the kids who come out as gay.
Dreher’s farming community shouldn’t be forced to supply a gay wedding.

It seems to me the current rules give us the worst of both worlds. They are both radically underinclusive (in that they fail to prevent the most serious discriminatory harms) and radically overinclusive (in that they coerce people for no benefit or reasonable purpose).

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Rich Puchalsky 04.15.15 at 1:21 pm

Sure, Salem, let’s basically destroy freedom of association, which if it doesn’t apply to membership doesn’t apply to anything, and in return substitute your personal intuition about what kind of discrimination is over or under inclusive, dressed up as abstract reasoning. That will work really well.

As philosophy, it’s shoddy. Who are you to decide what has no benefit or reasonable purpose? You evidently disagree with the couple who filed the lawsuit in the case you link to, which they certainly took trouble and time to pursue and for which they got attorney’s fees. I imagine that they thought that this had the reasonable purpose of not having another couple get a homophobic letter from a purported wedding photographer about how their wedding was wrong when they were happily planning their wedding. Anti-discrimination is social, of course, and is defined socially.

As politics, it’s weak. I’ve already explained why you have no chance of moving actuality in this direction. I have sympathy for patently implausible, abstract proclamations when they really are in the service of some utopian vision. But “a little more in column A, a little less in column B” isn’t one of them.

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Rich Puchalsky 04.15.15 at 2:08 pm

I keep trying to get people interested in issues of how a lot of this is implicit in a liberal framework (by which I mean the framework that both U.S. left-liberals and U.S. conservatives basically adhere to). Here’s a quote from the article that Salem linked to above:

But Willock’s attorneys framed the issue in stark terms. “The law simply says: Whatever service you provide, you must not discriminate against customers when you engage in public commerce,” they said in their legal brief. “Moreover, when the company sells its goods and services to the general public, it is not a private actor engaged in the expression of its own message. Customers do not pay for the privilege of facilitating the company’s message.”

One of the basic principles of the capitalist order is this separability of person from product. (Where are the Marxians on this one? Bored to tears by the thread, I’d guessing.) Customers “do not pay for the privilege of facilitating the company’s message”, they want to hand over money and receive a service which is what they paid for with that money. Although greater artistic skill at photography might increase the photographer’s ability to charge more for services, the artistic skill is supposed to be turned towards conveying the message and personality of the person buying the service, not that of the photographer. It’s how this relationship differs from, let’s say, artistic patronage, in which (ideally, though often not in actuality) the patron gives the artist resources and in return the artist produces works which hopefully embody the artist’s vision.

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Consumatopia 04.15.15 at 2:21 pm

I’m not sure it’s a good principle, but commercial-discrimination-illegal–private-discrimination-legal is, at least, logically defensible. Everything you do has the potential to affect other people, but a commercial transaction is intrinsically about controlling something outside yourself, depending on some kind of communal agreement as to who owns what.

And, besides, whose head and inscription is on the coin?

That said, although it’s logically defensible I don’t think it’s the right answer. Lynn Gazis-Sax @403 has the right idea, I think, and contra parse it seems to be roughly represented under current law, which lets you discriminate in who you accept as your roommate even if money changes hands. We force Archie Bunker to work alongside black people, but not to live with them or pray beside them. It’s not crazy, though, to argue that we may have the balance somewhat wrong, and the photographer may possibly be an example of that.

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JW Mason 04.15.15 at 3:14 pm

Where are the Marxians on this one? Bored to tears by the thread, I’d guessing.

You guess correctly!

Personally, I think most of the interesting issues here were dealt with by Marx in “On ‘The Jewish Question’.”

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Barry 04.15.15 at 3:27 pm

Salem, I see your position as highly self-contradictory, and your example following that proves it. You complain about ‘forced association'[1] for commerce, and don’t like it, but do like ‘forced association’ for non-commercial situations.

And this follows an almost perfect trend on this matter; I don’t think that I’ve seen a single argument on this side which could not be and was not applied to racial and sexual discrimination.

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Salem 04.15.15 at 3:38 pm

Who are you to decide what has no benefit or reasonable purpose? You evidently disagree with the couple who filed the lawsuit in the case you link to…

I’m quite comfortable saying some purposes are reasonable and some aren’t, and that kind of coercion isn’t a close call. I’m not in the least worried that not everyone agrees. Liberalism doesn’t have to collapse in on itself in the face of disagreement.

As politics, it’s weak. I’ve already explained why you have no chance of moving actuality in this direction.

On the contrary, I think the politics of my position is quite successful; reality has moved, and continues to move, in my preferred direction. The unjust coercion against people like the Huguenins has already produced a political and legal backlash, where both voters and the courts are much more protective of religious rights in a commercial setting. Meanwhile, informal and social discrimination (while still alive) continues to diminish, to the extent that I hope government intervention may eventually not be necessary.

Indeed, I mostly see complaints that reality is moving too much in my direction! Dreher laments that he doesn’t have good options for a discriminatory community, because bigots aren’t thick enough on the ground. Holbo laments that the owners of Hobby Lobby can’t be forced to violate their religion. The work is by no means done (on either front); but I’m pleased with the way things are going in this respect.

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Salem 04.15.15 at 3:56 pm

Salem, I see your position as highly self-contradictory, and your example following that proves it. You complain about ‘forced association'[1] for commerce, and don’t like it, but do like ‘forced association’ for non-commercial situations.

No, I don’t like forced association in either case. But there are other things I like even less than forced association, so sometimes forced association is the least bad option. Sometimes, forced association may be necessary in commerce; if you’re the only doctor in the area, you should have to accept gay patients, no matter how bigoted you are. Violating the doctor’s freedom of association is still bad in this case, but denying the gay patients effective access to medicine is even worse. But equally, we shouldn’t jump to forced association. If there are a hundred doctors in the area, and 99 of them are happy to see the gay patient, there’s no reason to violate the bigoted doctor’s freedom of association. The question is – where does the harm lie? No-one can say with a straight face that Willock and Collinsworth suffered any cognisable harm from the Huguenins’ refusal to photograph their wedding, so why on earth should their freedom of association be abrogated.

The exact same analysis applies to a non-commercial situation. Freedom of association is extremely valuable, but it can be overridden to prevent greater harms. However, as I have pointed out several times, the harms from discrimination in non-commercial situations are normally greater than the harms from discrimination in commercial situations. Therefore the balance will normally favour more non-discrimination measures in non-commercial settings, but not because non-commercial settings are qualitatively different from commercial settings.

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Consumatopia 04.15.15 at 4:14 pm

On the contrary, I think the politics of my position is quite successful; reality has moved, and continues to move, in my preferred direction. The unjust coercion against people like the Huguenins has already produced a political and legal backlash, where both voters and the courts are much more protective of religious rights in a commercial setting.

I would have agreed with you (except perhaps on the “unjust” part) until this Indiana mess went down, but reality seems to have quite suddenly swung back against you. Indiana might still have no LGBT protections, but the governor and legislature were successfully pressured into ruling out exactly the interpretation of the law that you favor. And the courts seem to have never been on your side as far as commercial entities discriminating for religious reasons goes–Huguenin was claiming free speech, not free exercise. And Huguenin lost.

Supposedly even Hobby Lobby depends on the government having alternative ways to provide birth control for the employees in question. There is a glimmer of hope for you there in that there is a chance the conservatives on the court were being disingenuous and intend to extend much broader religious protections. That’s no guarantee, though, as courts were only forced into these cases by RFRA laws passed reaction to them ruling that the First Amendment didn’t let people ignore the laws. And those RFRA laws no longer have the bipartisan support they once did.

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Consumatopia 04.15.15 at 4:43 pm

However, as I have pointed out several times, the harms from discrimination in non-commercial situations are normally greater than the harms from discrimination in commercial situations.

This is insane. It means that one makes discrimination less harmful by attaching commerce to it. Just because you assert something multiple times doesn’t mean it makes any sense.

Some noncommercial discrimination is more harmful than some commercial discrimination. And vice versa. Harm to the discriminated against is not the only thing we consider when regulating discrimination. If it were, why stop at regulating associations? Why not ban hateful speech and religions?

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Rich Puchalsky 04.15.15 at 7:44 pm

Consumatopia: “Harm to the discriminated against is not the only thing we consider when regulating discrimination. If it were, why stop at regulating associations? Why not ban hateful speech and religions?”

I thought that part of Salem’s argument was that speech couldn’t be harmful. That’s the only way I can interpret “No-one can say with a straight face that Willock and Collinsworth suffered any cognisable harm from the Huguenins’ refusal to photograph their wedding”. If someone sent me a letter saying “Sorry, I can’t give you a medical operation because you’re gay and it would be wrong” then even if I instantly found a better doctor, I’d still consider this to be a harmful letter. But free speech! someone might reply. Well, the people seeking a photographer aren’t public figures, and when they went looking for a wedding photographer, they weren’t looking for a chance for other people to exercise their free speech rights about their wedding. If other people found out in some other way and picketed the wedding, we’d think the protesters were tremendous jerks and that what they were doing was probably legal, but still harmful.

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ZM 04.15.15 at 9:53 pm

“The exact same analysis applies to a non-commercial situation. Freedom of association is extremely valuable, but it can be overridden to prevent greater harms. “

I think Rich Puchalsky is right and you are being contradictory unless you want to transform the private/public separation to them both being the same .

Even if you do want this transformation how would it work in practice? Shopkeepers can say” you heathen you have violated my religious beliefs so I will not sell you bread”? But then passers by can see a tea party going on and knock to go in and the host cannot refuse them due to not having any religious reasons to object?

Further, local government programs for social inclusion usually have activities in public places, not in private residences.

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faustusnotes 04.16.15 at 1:03 am

Salem, when you say you want to see less enforced commercial association, you’re basically saying that people like me should just suck it up if we get refused a home. That’s fine if we live in a society where the number of people who would do such thing is small (as I do). Most people commenting here seem to live in a society where killing black people for sport is okay for certain classes of citizens. I think that should be taken into account when you discuss weakening legal laws that currently protect those people from being economically disenfranchised.

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Consumatopia 04.16.15 at 1:03 am

I sort of get it, in that there are some matters of private association, like insular religious communities shunning any individual that questions the local orthodoxy, that are truly terrible–essentially, people are forced into submission by the threat of being cut off from everyone they know.

It’s heartbreaking. I can understand looking at that and saying “there outta be a law!”. I just don’t know what that law could be.

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Sebastian H 04.16.15 at 3:44 am

“Also why are religious people so damn special that they get to discriminate and I don’t? Why is being an arsehole only legally sanctioned for the superstitious?”

That’s just a function of the semi-ridiculous religious freedom act workaround to the judicial overreach circa 2006 or so. The old rule was essentially that you couldn’t discriminate in shops that sold goods, or certain services *onsite*, but that other types of sales and most offsite services you could. No religious belief component required.

Lynn, you write “It may be that a given person thinks that the greatest harm of all is done if I refuse to have sex with him, but I am allowed to do so, even if my reasons for preferring sex with someone else to sex with him are obnoxious and bigoted, because in that case the harm of my being compelled to have sex with someone I don’t want to (for however obnoxious a reason) are so great that they outweigh any harm that could be done to him by losing me as a possible sex partner. Having someone in my house that I don’t want there is less intrusive than having someone in my body that I don’t want there, but still more intrusive than having someone in my shop that I don’t want there (after all, my house is a place where I’d normally only invite people I particularly like, for mutual pleasure, while my shop is a place where I’d normally invite the whole world, because it’s hard to make a living off only your particular friends). So the harm of my being required to have people I don’t want in my house is greater than the harm of having people I don’t want (not because of any misbehavior on their part but simply because I don’t like their kind of people) in my shop.”

This is an interesting analogy because it tracks very closely with the old rule (if you have a store with goods, you have to sell them to all comers, but you don’t have to provide services just because someone wants you to.)

It is only in the last 8-10 years that anyone thought you could compel off-site services.

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faustusnotes 04.16.15 at 7:25 am

Sebastian H that doesn’t answer my question. I don’t care about the particular legislative reasons why one dumb law is replacing another one. I want to know why religious people are especially allowed to refuse to offer any category of service, while simply bigoted people are not. The USA is a religious oligarchy, not a democracy.

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Consumatopia 04.16.15 at 2:05 pm

It’s not “judicial overreach”, the state anti-discrimination laws simply go further than the federal law. And, as defenders of Indiana’s law repeatedly pointed out, no court has ever found that these various religious freedom acts, which started being passed in the 90s, exempt anyone from discrimination laws.

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