In our discussion of rights, back in June, we talked about
what is a right, so we can recognize what we’re dealing with. Because a lot of
Americans have been confused about that for a century or so.
And we covered a bit of history related to the Bill of
Rights, and how we got those first 10 Amendments to the Constitution.
Then we talked about the first of the five rights in the
First Amendment: the right to freedom of religion.
So that leaves the other four in that amendment, and a
number of others in the remaining Bill of Rights. We’ll see what we get through
today.
The other four rights in the First Amendment are:
·Freedom of speech.
·Freedom of the press.
·Freedom to peaceably assemble.
·Freedom to petition the government for redress
of grievances.
Last week we talked about the pandemic a bit—and a little bit of the 5th
Amendment (which was invoked 111 times by Fauci in that Senate hearing). And
it’s interesting to note that all of these First Amendment rights were abridged
during the pandemic.
The Constitution guarantees us that government will not
abridge these rights—and yet government did anyway.
Our discussions here are intended to inform us, so that we
don’t blissfully go along with whatever government officials say. Because
government is fire, and it needs to be carefully contained, or it gets out of
control and burns. In real terms, rather than metaphorical, government is full
of humans, many of whom are motivated by power and greed, and they work for
those motivators, rather than for the good of society. Some—maybe even the
worst—work for the power and money with the full conviction that they are doing
it for our own good, even when they’re doing it against our will.
We
have learned by sad experience that it is the nature and disposition of almost
all men, as soon as they get a little authority, as they suppose, they will
immediately begin to exercise unrighteous dominion.—Doctrine and Covenants
121:39
Why do we limit government’s powers? Because governments are
made up of individual humans, some good, some not so good. None perfect. Many
are petty tyrants. So we limit government. We must.
But what about when there’s an emergency? Like now?
Governments have ordered people to stay home as much as
possible. Lose their livelihood for the time being. Lose businesses, some of
them permanently. Lose many of our basic freedoms. But we have been going along
with the restrictions—for now. Assuming there is a greater good we are doing it
for. And assuming it is temporary, and damages might be mitigated later.
But, as petty tyrants do, they step further than necessary.
And they have to be swatted back.
On Thursday, Louisville Mayor Greg Fischer ordered a
prohibition on churches—but particularly on a single local church that had made
plans—to have drive-up services, including for Easter.
The church, On Fire, pushed back. And quickly, District
Court Judge Justin R. Walker issued a temporary restraining order, Saturday
afternoon—before the prohibition could take effect on Easter Sunday.
On Fire Christian Church, Louisville, Kentucky image from On Fire Facebook page, found here
I’ve been binge-watching the Viva Frei Vlawg—a law-related
video blog, with Canadian lawyer David Frei, for some months now, since impeachment. Even though he’s in Canada, he often covers American issues, and is a serious student of our Constitution. My son Political
Sphere told me Frei had posted yesterday morning, out in his car, with his wife
texting him to get back in the house, because he just had to share this ruling—about
the Kentucky case.
So I went and looked for it. Of this ruling Frei says, “Some judgments, however
long or short, are just tedious to read, while other judgments are just things of
beauty.” And he's right; this is a thing of beauty in written thought.
Frei says he’s often asked about the constitutionality of
these restrictions during the pandemic. He says, “The questions is not, ‘Are these measures unconstitutional?’ The question is whether the
unconstitutionality of these measures can be justified by the circumstances.”
The measures must be “proportionate to the urgency of the situation.”
So he goes through the TRO (temporary restraining order) written
by Judge Walker.
Here’s the introductory paragraph of the opinion:
On Holy Thursday, an American mayor criminalized the communal
celebration of Easter.
That sentence is one that this Court never expected to see
outside the pages of a dystopian novel, or perhaps the pages of The Onion.
But two days ago, citing the need for social distancing during the current
pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend
Easter services, even if they remained in their cars to worship—and even
though it’s Easter.
The Mayor’s decision is stunning.
And it is, “beyond all reason,”[i]
unconstitutional.
The judge said the Church would suffer irreparable harm,
because missing Easter services is not something that can be made up to them.
Saying, “Oh well, you can try again next Easter” won’t do.
And he said the government would be substantially burdening
the believers, preventing them from practicing their religion on one of the
most important religious holidays.
He said the temporary restraining order was necessary
because of the urgency of the timing. A hearing is to happen on Tuesday, April
14. (In the TRO, he suggests how to get the contact information for the virtual
hearing—which includes allowing the public to listen in.[ii])
Waiting until the hearing would mean the irreparable harm—of missing Easter—would
be done. So this was urgent.
Further, he did not require the plaintiff, On Fire Christian
Center, to put up security; that is, a possible payment amount set aside in
case they lose. The judge said there would be no damage done to the city of
Louisville if On Fire were to lose; its right to prohibit public gatherings to
prevent the spread of the virus would be intact. He also waived notice of
judgment because of the timing and urgency—but he was likely pretty sure the
Mayor got the message in time to rescind the order to have police at the church
taking license plate numbers.
In his reasoning Judge Walker spends some time introducing
the history of Easter, to explain why it is seen as important to a Christian. And
he also makes some comparisons that show the Mayor and Louisville what category
he puts them in:
Of course, pockets of society have not always lived up to our
nation’s ideals. Slaveowners flogged slaves for attending prayer meetings.[iii]
Murderous mobs drove the Latter-day Saints into Utah.[iv]
Bigotry toward Roman Catholics motivated a majority of states to enact Blaine
Amendments.[v]
Harvard University created a quota system to admit fewer Jewish students.[vi]
And now we have Louisville’s mayor preventing the celebration
of Easter.
Frei tells us there are four criteria for a TRO:
1.Plaintiff
(On Fire) has strong likelihood of success on the merits.
2.Plaintiff
would suffer irreparable injury without a TRO.
3.The
“balance of the equities” tips in Plaintiff’s favor.
4.Injunction
is in the public interest.
On Fire satisfies all four requirements for a TRO. And the judge
lays out why for each one.
What was Mayor’s Fischer’s side? What was his justification
for the prohibition? He claimed it wasn’t “practical to accommodate drive-up
services in our community.” But he does not prohibit drive-through restaurants
or liquor stores. He claimed what the church was planning was “clearly a very,
very unsafe practice.”
But on what basis? The cars were going to be parked six feet
apart. People were going to remain in their cars, with windows no more than
halfway down throughout the service. The only people out of cars would be the
pastor and the videographer, who would be well separated from the cars (and
presumably from each other). The church had every intention of abiding by CDC
guidelines for social distancing.
Why would it be unsafe to be in a car away from others in a
church parking lot, but not at a drive-thru restaurant or a liquor store? Or
any other type of parking lot, for that matter?
It’s true that the mayor could fulfill his own religious
convictions from home on Easter Sunday; many people would. (We did.) But that
doesn’t mean it has to be true for everyone. People believe differently. The
judge says, quite beautifully,
It is true that On Fire’s church members could believe in
everything Easter teaches them from their homes on Sunday. So too could the
Pilgrims before they left Europe. But the Pilgrims demanded more than that. And
so too does the Free Exercise Clause. It “guarantees the free exercise of
religion, not just the right to inward belief.”[vii]
That promise is as important for the minister as for those ministered to, as
vital to the shepherd as to the sheep. And it is as necessary now as when the
Mayflower met Plymouth Rock.
The mayor’s threats actually violate both the First
Amendment and Kentucky law. Still, government is not always and necessarily in
the wrong. Judge Walker concedes that, in an emergency such as an epidemic, a
state may implement emergency measures that curtail constitutional rights. But
these measures must be:
·Proportionate.
·Justified.
·Necessary.
·Effective.
Frei explains that even very minimal measures would not be
justified if they didn’t relate to the public health crisis—or whatever the
crisis might be, or if they were ineffective in addressing it. And the most massive,
sweeping, draconian measures could be effective—"such as making everyone
stay at home in their bathroom,” he suggests—but those measures would be too
overly burdensome to be justified.
Viva Frei Vlawg: "Louisville Mayor Tried to Cancel Easter" screenshot from here
So there must be a balance. The Judge recognizes that
Louisville shows a compelling interest—the public health, saving lives. But
government must show it lacks other means of achieving its desired goal.
The measures are both underinclusive and overbroad. Louisville
does not narrowly tailor the measures to avoid unduly burdening the right of Freedom
of Religion in this case. Nor does it include other similar non-religious
circumstances. Together, this looks pretty clearly like infringement of
religious rights specifically.
After laying out all the legal views, here is the Judge’s
final paragraph:
But for the men and women of On Fire, Christ’s sacrifice isn’t
about the logic of this world. Nor is their Easter celebration. The reason they
will be there for each other and their Lord is the reason they believe He was
and is there for us. For them, for all believers, “it isn’t a matter of reason;
finally, it’s a matter of love.”[viii]
Judge Walker is a recent Trump appointee, only 38 years old.
We’re going to need judges who can both see the legal issues, but be sensitive
to the philosophy underlying what our founders put in place.
Frei ends with this:
Health emergencies, even if they are most legitimate
emergencies, do not give the government carte blanche to take all one
fundamental rights and liberties. Even in the context of health emergencies,
violations to one’s fundamental rights and liberties have to be justified; they
have to be proportionate; and they have to be reasonable. They have to be
properly and narrowly crafted in order to achieve the desired result without unduly
infringing on rights and freedoms.
And if we don’t have judges like Judge Walker holding the government
to task, it is not long before we have no rights at all.
My own Church has been very well set up for worship from
home, and for now I’m comfortable with that—trusting that it’s only for this
special time.
There have been other churches who have looked at the social
distancing guidelines and tried to find ways to abide by those within their
buildings. They offer hand sanitizer. They seat people with each family separated
from others by at least six feet. They’re trying to find a balance. It doesn’t
look different from social distancing at a grocery store. So, whoever is
telling them they can’t ought to be proving it’s somehow less safe than in the
grocery story. I think there’s likelihood in-person is more dangerous than drive-thru,
but it may not be more dangerous than other working conditions that are
allowed.
I heard of a place deciding that people shouldn’t be allowed
to shop for non-necessities when they do go out to shop. No clothing, for
example. Only food. But who is to say that the family with a growing toddler
doesn’t absolutely need more clothing—which they can see the size and
feel of in person, and which they may not have the resources to buy with
shipping costs online?
And then there was the closing of parks—for fear people would
use them inappropriately, not because they had been misused and causing danger.
So this means that people who have no other outdoor choice (and outdoors is
supposed to be good for us, and safe) can’t go to the park for a walk or run.
Police in Colorado arrested a dad who was playing catch with
his young daughter—away from everyone but their nuclear family. The ones who
violated the social distancing were the police. They had to release him almost
immediately, with an apology—and investigation coming. What violation did they
even think they saw?
A friend of mine was walking with her husband and son—away from
all others. A car drove by and yelled at them to get home and stay away from
people. Why? Wouldn’t you assume a family walking together also lives in the
same house together?
Petty tyrants pop up in times like this, when our usual
freedoms are suspended. We’ll need to reassert our rights as soon as we can,
and repeatedly. We can thank judges like Judge Walker. But we also need to do
more than trust the courts.
If we want our world back, as we begin to open back up, we
will need to do whatever we can that is safe enough, and insist on our rights
to do those things.
Frei ended with this quote on the screen:
“Those
who deny freedom to others deserve it not for themselves; and under the rule of
a just God, cannot long retain it.”—Abraham Lincoln
[i] The
“beyond all reason” quote is from Cf. Jacobson v. Massachusetts, 197
U.S. 11, 31 (1905).
[ii]
Point 8 in the TRO reads: “The Court GRANTS On Fire’s request for Oral
Argument. The Court will hold a
telephonic hearing on the preliminary injunction motion
on April 14, 2020 at 11:00 A.M. Counsel
shall email Ms. Megan Jackson at
Megan_Jackson@kywd.uscourts.gov for the hearing’s call-in
number and access code. Members of the public
interested in listening to the hearing may also
email Ms. Jackson.”
[iii] Footnote
in the TRO: Albert J. Raboteau, The Secret Religion of the Slaves: They
often risked floggings to worship
With the kids home from school, maybe this is a good time
for a civics lesson—one they probably wouldn’t be getting (but should) if they
were in class. Feel free to share this with them. They might understand more
than you’d expect.
Why do we refer to God-given rights, as our founders did, as
opposed to government-given rights?
If God is the source of a right, then that is final; no
earthly power can take away that right. If it’s not innate, given to us by God
simply for being born, then it is given by someone earthly who can take it
away. If it’s from god, it’s permanent.
Human history tells us, however, that there are plenty of
earthly powers that fail to respect those God-given rights, pretend they don’t even
exist, and trample over them—trample over the people to whom those rights
belong.
That doesn’t stop those rights from existing; it just means
those earthly powers are tyrants—whether governments or criminals.
Governments are established to protect the people’s
God-given rights. But government, like fire, tends to spread and burn things it
wasn’t intended to burn.
That means we, the people, need to be constantly vigilant,
to prevent the spread of government beyond its protective purpose.
America’s founders set up our government carefully. They had
certain expectations based on centuries of English Common Law. And, because of
the distance between the original colonies and Great Britain, they got used to
a lot of self-government. That made it easy for them to recognize government
overreach, and they pushed back against it.
If you read the list of abuses of power in the Declaration
of Independence, you can see many of the things they recognized as tyranny,
which were antithetical to a free people. I went through the list of abuses of
power in the Declaration, as a thought exercise this week, to identify the
right(s) each complaint dealt with. I didn’t always know how to categorize the
complaint, but it was enlightening to find multiple complaints related to the
same rights. It shows us what they didn’t like, what they saw as tyranny.
So, what are the rights that they showed were being trampled?
One was that they had a right to the rule of law,
rather than ruler’s law. Ruler’s law is whatever the ruler says it is, making
it capricious, unfair, and tyrannical. The right to the rule of law is what
they’d come to expect for half a millennium, since the Magna Carta. They weren’t
inventing something new and then complaining that their monarch wasn’t going
along; their monarch was bound by the law—so he was clearly violating that law
when he ruled by fiat.
The right to self-rule was another big one. The law
the people were subject to ought to be something they agreed to; they have a right
to representation, to have a voice in what becomes law. They wanted things
to be local, to respond to their actual needs. And they wanted a say in what
that law was. They rejected having law imposed on them from high up and far
away.
They had the right to equal protection before the law—unlike
past tyrannies that favored some classes over others, regardless of behavior.
They also mention that justice should be swift, and local—instead of
forcing them to travel far from home. And records should be available
locally—they had a right to government information, the right to transparency
of government.
They had the right to property, and to what is often called
the “bundle of sticks” that comprise property rights:
Let’s add to these the Bill of Rights—which are not rights given
to us in our Constitution, but our Constitution protects us from having
government abridge these rights. All of them come under the broader categories
of the rights of life, liberty, and property.
These are five in the First Amendment.
·Freedom of religion—government can
neither establish a state-favored religion nor prohibit from freely exercising
their religion.
·Freedom of speech—government cannot get
in the way of people freely speaking their opinions, beliefs, facts that they
know.
·Freedom of the press—government cannot
prevent the printing of news and media, sometimes extended to freedom of expression.
·Freedom of assembly—government cannot
prevent people from peaceably assembling, or gathering together with whomever
they choose.
·Right of redress of grievances—government
is subject to being petitioned, or sued, when citizens perceive that government
has harmed them.
The Second Amendment is the right to self-protection.
Here’s a basic difference between a free society and subjects to a ruler. Free
people have the right to protect themselves from attack—even using weapons,
even causing death in cases in which their life or the life of another is
threatened. A subject to a ruler who has abridged this right is dependent on
the benevolence of the ruler to provide protection of not. And the ruler might
abridge this right particularly to prevent an uprising among the subjects. The
founders wanted to make sure that right to self-protection would not be abridged.
The Third Amendment may seem foreign to us today. But in the
founders’ time—and this is mentioned in the Declaration—is freedom fromhaving
a standing army living among us, including quartered in our homes. Think of
it as being drafted into donating your housing space to a military, and in
their case a military that was set up not to protect them, but to protect the
faraway government’s interests from the people.
The Fourth through Eighth Amendments relate to judicial
fairness issues.
The Fourth Amendment is the right to be secure—our persons,
houses, papers, and effects—from unreasonable searches and seizures. You
yourself, and what you own, are not the government’s possessions for the
taking. There has to be a lawful reason for depriving a person of these natural
rights.
The Fifth Amendment relates to judicial fairness. It prevents
a person from being forced to testify against himself in capital or otherwise
serious crime. Also, it prevents a person from being put in jeopardy more than
once—a second trial after being found not guilty. It prevents a corrupt government
from preventing a person from going about his life by continually putting him
in court over the same issue.
The Sixth Amendment
is also about judicial fairness: the right to a speedy and public
trial, by an impartial jury in a local jurisdiction. Also, the accused must
be informed of the nature and cause of the accusation, to be able to face witness
against him, to have a process compelling witnesses in his favor, and to have
defense counsel.
The Seventh Amendment is the right to a trial by jury
in controversies over a certain minimal amount, and the jury’s decision shall
not be overthrown. Also, the rules of common law must be followed.
The Eighth Amendment prevents excessive bail from being
required, excessive fines from being imposed, and no cruel and unusual
punishments afflicted.
The Ninth and Tenth Amendments are the miscellaneous
everything else.
The Ninth Amendment makes it clear that mention of rights in
the Constitution does not mean those are all the rights there are. Other
rights cannot be denied. The people retain those.
The Tenth Amendment make it clear that any duty not
delegated in the Constitution to the United States are duties and rights
still held by the States and the people.
The rights that are included in the Bill of Rights reveal ways
the founders had experienced tyrants trying to take their rights away, so they
thought they needed to be spelled out most clearly—even though they were
self-evident and inalienable.
But those last two show they understood that there are more
rights, none of which can be taken from individuals except as the just
punishment for a crime.
One of those not mentioned is parental rights: to see to the
care and upbringing of their children. Another might be making your own
healthcare choices.
But, in short, how do you know it’s a God-given inalienable
right? It has to be something you’re born with. You deserve it because you’re
human. Beyond parents obliged to caring for their child, it must be something others don’t have
to be put into servitude to provide for you.
It’s June, the Supreme Court ruling season. Today the
Supreme Court announced its ruling in the Masterpiece Cakeshop v. Colorado
Civil Rights Commission case. It was a 7-2 ruling in favor of Masterpiece
Cakeshop.
But it was a very narrow ruling, answering almost none of
the questions surrounding the issue, and mainly just telling the Colorado Civil
Rights Commission that they were wrong to express their hostility toward
religion during their prosecution of the baker.
It’s good that the case informs this particular Commission,
and possibly similar commissions in other states, that religious people have
the same rights as other people.
But it is so narrow that the Court says nothing about
protecting a creative person’s First Amendment rights if the state has a “compelling
interest” it sees as greater than that person’s religious freedom, and it
prosecutes without expressing
hostility.
So I’m glad it’s not worse, but I wish it were better.
That seems to be how we feel most of the time when so much
extra-Constitutional power is granted to these nine unelected judges.
At the bottom, there’s a video from November about the case.
But here’s a quick review.
A Colorado appellate court ruled in August 2013 that, when Masterpiece
Cakeshop owner Jack Phillips declined to design and create a custom wedding
cake for a same-sex couple, he had violated their civil rights. This was in 2012,
two years before same-sex “marriage” was legally recognized in the state; the
couple got married in Massachusetts, where it was legal.
The couple was not denied service; only their particular
commission for a custom product for a particular event was declined. Nevertheless,
the Colorado Civil Rights Commission prosecuted and ruled that Phillips must
“take remedial measures, including comprehensive staff training” on how
conscientious objection must bow before anti-discrimination law in same-sex situations,
and to “file quarterly compliance reports” with the state regarding the
mandated retraining.
The appeal by Phillips claimed that whether to create a
custom cake for a same-sex “wedding” is protected by two parts of the First
Amendment: freedom of expression, and freedom of religion.
The ruling doen’t really settle either the freedom of
expression or freedom of religion questions. But it gives a nod to respecting
the rights of religious people.
Court drawing of Justice Kennedy announcing the ruling
image from here
In his ruling, Justice Kennedy showed this usual pattern of
behavior by the Commission:
On at least three other occasions the Civil Rights Division
considered the refusal of bakers to create cakes with images that conveyed
disapproval of same-sex marriage, along with religious text. Each time, the
Division found that the baker acted lawfully in refusing service. It made these
determinations because, in the words of the Division, the requested cake
included “wording and images [the baker] deemed derogatory.”
In other words, the Commission didn’t always require a baker
to act against conscience. However, when it came to this case, the religious conscience was not respected.
Here’s what the Colorado Civil Rights Commission had
testified, which was at issue:
Freedom of religion and religion has been used to justify all
kinds of discrimination throughout history, whether it be slavery, whether it
be the holocaust, whether it be—I mean, we—we can list hundreds of situations
where freedom of religion has been used to justify discrimination. And to me it
is one of the most despicable pieces of rhetoric that people can use to—to use
their religion to hurt others.
One, the couple was not hurt. They were politely sent where
they could get the services done by a willing provider. Two, religion isn’t
rhetorical; it is deeply held belief. Even non-religious believers have deeply
held beliefs, which constitute their religion, whether they call it that or
not. Three, religion is an effort to live a good life, not to do evil. It was
religion that led to the elimination of slavery, after it had existed in most
cultures for millennia. Further, it was not religion that led to the holocaust,
but hatred and bigotry—something differing from the Commission’s hatred and
bigotry only in degree of power.
What is despicable is this Commission’s distortion of
history in its zealousness to malign religious people.
So, at least the Court got it part right.
SCOTUS has no business deciding whether a baker should be
forced to bake a cake—for any purpose. We don’t want the Supreme Court
determining nitpicky laws compelling how we conduct our personal lives and
businesses. So, in some ways it’s good the Court did not make a sweeping
ruling.
An excellent analysis of the opinions is found on the SCOTUSblog, by Amy Howe. But I’d like to walk through the issues, just for clarity.
Two inalienable First Amendment rights were at issue: the
free exercise of religion, and freedom of speech, often referred to as freedom
of expression. These go up against a state’s “compelling interest” regarding
another civil “right.”
The “right” these inalienable and also enumerated Constitutionally
protected rights were up against was the “right” to buy a custom product from a
particular creative businessperson regardless of that person’s willingness to
create it.
That one’s not enumerated in the Bill of Rights, or anywhere
else in the Constitution. That doesn’t necessarily mean it isn’t a right. Any
God-given rights not enumerated are still vested in the states and the
individuals.
But there is a simple way to know whether you are looking at
a God-given natural right: were you born with it? You’re born impoverished,
ignorant, and naked; you have a claim on your parents to care for you until you
can care for yourself. But there’s no natural right to cake-by-the-maker-of-your-choice.
You can’t have that as a right without enslaving someone else to provide it. So
it’s not a right.
The issue isn’t really about getting a cake; the cake artist
(his cakes are literally edible works of art, not just pretty, fancy cakes)
politely recommended other cake shops that could meet the needs of the couple.
The issue isn’t really about service to homosexuals, either.
The cake artist gladly served all customers, and had a long history of doing
so. It was a specific event—the same-sex wedding—that he did not want to use
his art to promote.
Everything in his shop was available to gays and straights
and anyone else who walked in his door. What Phillips did was refuse to use his
skills to design and bake a unique cake and participate in a gay wedding.
Phillips didn’t query anyone on his or her sexual orientation. It was the
Colorado civil rights commission that took it upon itself to peer into
Phillips’ soul, indict him, and destroy his business over a thought crime.
I’d like to try to translate this in terms that seem less
inflammatory than “he just hates gays, and that’s wrong, so he should be forced
to do what they ask.”
I have a friend who is an excellent artist. He makes his
living doing works of art and selling them. Much of his work is on commission.
That means a person comes to him (it used to be in a shop/studio, but now his
studio is at his home). And they describe the work they are hoping he can
create. Sometimes these are portraits or family groups. Sometimes they are
religious works or historical pieces.
He doesn’t take every commission that comes to him.
Sometimes it’s a matter of timing; if he takes on too many, he could overwork
himself, and the quality would suffer, which would probably bother him more
than the clients, but it’s an important factor.
But he also needs to do things that are worth putting the
artistic effort into.
Suppose someone came to him asking for something he might
find ugly. It could be something with nudity, or explicit sexual behavior, or
something anti-Christian, or something racist. Even if the work would have no
words on it, art expresses a message. And he might not want his name—or his
style and reputation—attached to something repugnant to him.
It might even be that the person asking for the commission
is personally disagreeable to him. That happened with an artist who was asked
to paint a portrait of Pres. George W. Bush; he declined, because his personal
views were at odds. That may have meant he wouldn’t have put his heart into
doing the work. Or it might have meant he was afraid people would interpret his
work as approval of someone he disapproved of, so it would seem untruthful to
him. Or maybe life is just too short to put time and energy into something you
don’t want to do. Someone else did the portrait, which turned out to be better
for everyone.
So that’s how artistic endeavors work. If you want something
creative/artistic done for you, you find someone whose work you like, and you
ask to commission the work. The artist gets to say yes or no based on whatever
reason he might have—and he doesn’t even have to tell you why.
The only difference with the bakery is that it is a shop;
all comers are invited to come in and buy his wares. Still, he’s free to take
on a commission for custom work or not. Owning a shop does not make someone a
slave to every party who walks in the door.
Good business says he’ll do what he can, and if he doesn’t
take on a commission, he makes suggestions of where the customer can go.
This kind of creative situation is also true for florists,
photographers, T-shirt printers, stationery printers, and others related to
wedding and other services.
It’s pretty clear that, if declining the message is “approved”
by this Commission or some other ruling or influential body—a message such as
something racist or profane, or even of an opposing political viewpoint—the
creative person can turn it down without legal repercussions.
I think it would also be clearly legal for a Muslim baker to
turn down work that goes against her beliefs—maybe even if she turned down a
same-sex “wedding” cake. Certainly such a baker could turn down anything
pro-Israel, or even anything pro-pork industry. A sensible customer would
recognize and respect who they’re dealing with.
So what is it that makes same-sex “marriage” celebration, at
a time when such a “marriage” wasn’t even a legal reality, a state interest of
such great import that it overrides the most essential—and therefore first
enumerated—of self-evident natural rights?
We don’t know, since SCOTUS doesn’t actually answer that
question with their opinion. In fact, they leave all other creative religious people at risk of enslavement—as long as those prosecuting them don’t overtly
mention their antipathy toward religion. “Try again, but be careful not to
verbalize your religious bigotry next time,” is what the Court seems to be
saying.
It was the narrowness of the opinion that allowed it to be
7-2, rather than 5-4 or 4-5. So, again, I’m torn. The Supreme Court has no
business ruling on this issue; they had no business creating same-sex “marriage”
in Obergefell. They have overstepped their authority repeatedly on issues
related to same-sex “marriage,” and have put religious people in this
predicament by their cavalier overreach.
But if the Court has any useful purpose in upholding the
Constitution, they would have done well to say, “Of course you can’t enslave a
human being to do work that directly violates his conscience, simply to serve a
vocal minority group favored by the elites in media, academia, and socialist
ideology.” That would have been helpful.
If we didn’t have activist judges on the Court, we might
have gotten a more satisfying ruling. Gorsuch and Thomas seemed willing to give
it.
But, as long as Kennedy is on the Court, he will rule with
his gut on critical issues more often than with the Constitution. Justices Breyer
and Kagan were only with Kennedy on this because the Colorado Commission had
verbalized its meanness.
Meanwhile, Justices Ginsburg and Sotomayor were perfectly
aligned with a pro-slavery ruling, as long as it makes them look like they
favor a popular minority.
The best way to settle these divisive issues? Stop repeating
the lie that religion is simply a cover for doing evil. Stop assuming evil of
everyone whose opinion is different. Actually tolerate. Respect differences of belief,
and don’t prosecute over them. Because prosecution over belief is tyranny, with
all the ugly that attaches to that word.
The Constitution doesn’t grant us rights. It’s the other way
around. We, the People, grant certain limited, enumerated powers to the federal
government.
There’s a reason we need to limit government power. Mainly,
it’s because governments have a long and storied history of tyranny. In other
words, governments can’t be trusted to limit their power.
The first ten amendments to the Constitution, the Bill of
Rights, were added before the Constitution itself was ratified. The original
Constitution didn’t include them, not because there was any question about the importance
of those rights. It didn’t include them because they were self-evident; they
were so widely understood to exist that they went without saying.
Then the representatives of several of the states spoke up.
What if there came a time when these things weren’t still understood? Maybe
some of them needed to be spelled out, just as an additional guarantee. This
included Virginia’s George Mason, who had proposed major portions of the
Constitution, but was suddenly saying he wouldn’t vote for the Constitution
unless it contained these guarantees.
What is a right? In the context of the Bill of Rights, we’re
talking about natural rights. That means the rights you’re born with. You’re
granted these by God, because you are a human being.
There are five listed in the First Amendment. Most of these
have to do with freedom to think, or express ideas:
·Right of Freedom of Religion
·Right of Free Speech
·Right of Freedom of the Press
·Right to Peaceably Assemble
·Right to Petition the Government for redress of
grievances
So, you can believe what you want, and live your religion,
even in public. You can say what you believe. You can publish what you believe.
You can gather together with other like-minded people. And, if there’s any
disagreement about government infringing on your rights, you can sue to hold
the government accountable.
We’ve had plenty of contrasting evidence, much of it in the
past century, showing what harm comes to the people when government tyranny
steps on these rights.
The Second Amendment concerns the right to protect yourself.
The main proper role of government is to protect us—our lives, liberty, and
property. We hire government to take on this role so that we don’t have to
spend all our time and energy protecting ourselves. But that doesn’t mean we
give up our right to protect ourselves as well.
It’s like any other service. If you hire someone to clean
your house, that relieves you of much of the need to do it yourself, but you
don’t give up the right and ability to do some additional cleaning yourself
whenever you feel like it. If your kid spills cereal all over the floor, you’re
not required to leave it there until the cleaning service arrives.
If you’re receiving particular threats, you might hire your
own extra security team, in addition to the local, state, and federal police
forces. They’re busy spreading their protective force across the whole
population, so you might not feel confident they’ll be on hand when you’re
vulnerable. You retain the right to protect yourself. If someone tries to
attack you, physically or with a weapon, you have a right to protect yourself—even
physically or with a weapon.
There’s an extra, historical meaning attached to the Second
Amendment. It has to do with defense against
government. The founders knew, because they’d had to break free from tyranny,
that they needed weapons to prevent that tyranny from coercing them into
submission. The Constitution prevents government from getting out of hand—but only
if government is held to obedience. Government could come and threaten your
life, liberty, or property as easily as any thug. Maybe easier, since a thug
may have to face prosecution. Who do you appeal to if government is the
perpetrator?
Anyway, foreseeing the possibility, because they’d lived
through it before, the founders guaranteed the right to self-protection from
both outlaws and government.
We could go through the rest of the amendments as well. But
let’s summarize by pointing out that the Ninth Amendment says that, just
because it isn’t enumerated here doesn’t mean the people don’t have other
rights. And the Tenth Amendment says those powers not delegated to the federal
government are still held by the states and the people.
It’s troubling when people, in ignorance, start saying
things like, “They should demand a repeal of the Second Amendment,” as former
Supreme Court Justice John Paul Stevens said a couple of weeks ago. Is a former
justice ignorant? Apparently. Did he fail to read the
Ninth Amendment? Because we would still have the right to self-defense whether
it is written in the Constitution or not.
Pretending that “common sense gun laws” that restrict
law-abiding citizens doesn’t interfere with the right of self-defense is
disingenuous. It’s not a matter of weapon availability. People have said,
partly in jest, that if they took all our guns (if they even could), murderers
would still get them. And if, in an invented world, criminals couldn’t get
guns, they would use knives. What are you going to do, outlaw knives?
And then, following a series of knife attacks in London, Mayor Sadiq Khan outlaws knives. He tweeted, “There is never a reason to carry a
knife.”
I can think of reasons. Like, if I’m going to a friend’s
house to help cook. (I have better cooking knives than most of my friends.) I
carry a knife with me when I travel, because I have to take care of most of my
own food because of allergies. If I were going to do a project at a charity
that required opening boxes, I’d consider bringing my own box cutter. If I were
going fishing, I’d carry a knife for gutting the fish. If I went shopping and
found an excellent cooking knife, I’d need to carry that home. So, those are
all logical and common reasons to carry a knife. But, being who I am, no one
around me would be less safe because of my carrying a knife.
Oh, one more reason: if you’re living in a city where they’re
having a spate of knife attacks, and you weren’t allowed to carry a gun, you’d
want a knife for self-defense.
Remember that moment from the movie Crocodile Dundee, when
he’s in New York and some thug mugs them at knife point? And Dundee says, “You
call that a knife?” And then he pulls out his own, bigger near-machete, and the
thug runs off. No one is injured. No one is robbed. That’s what non-criminals
can do with a weapon. It’s not the weapon that is the problem; it’s the person
wielding it. And if it’s a bad guy, you need a way to defend yourself.
Back to that First Amendment. We’ve been listening to Senate
hearings with Mark Zuckerberg, about Facebook’s use of private information, and
about its policies to prevent conservative messages from getting through.
In his questioning of Zuckerberg, Senator Ted Cruz asked him about purposeful and routine
suppression of conservative ideas from trending stories. And he listed CPAC,
Mitt Romney, Lois Lerner and the IRS scandal, Glenn Beck, Chick-Fil-A Customer
Appreciation Day page, a Fox News reporter’s page, more than two dozen Catholic
pages, and Diamond and Silk’s page (two sisters, black, who support Pres.
Trump). Diamond and Silk were told their content—which is clean and
pro-American—is dangerous to the community.
Cruz went on to ask if he was aware of any suppression of
stories for Planned Parenthood, MoveOn.org, or any Democratic candidate’s page.
Zuckerberg claimed to be unaware of any of these. He claimed
his personal goal was to have a free place for all these ideas—with exceptions
we can all agree on such as terrorism, self-harm, or human trafficking. I want
to believe him. But, if his company is doing this censoring, he’s responsible
whether he’s personally aware of it or not.
In Cruz’s list was the IRS targeting. I got an update email
this week from Catherine Engelbrecht of True the Vote, which trained me in poll
watching here in Houston. She brought us up to date on recent results. Besides the nonprofit being held up
illegally by the IRS—even though it was what ought to be considered politically
neutral, in favor of free and fair elections—her personal business was targeted
by the FBI and multiple other agencies, preventing her and her family from
making a living. This week things were supposed to have been settled finally.
But the result has been essentially nothing. No one is held accountable. And
anyone in those organizations just got carte blanche to target anyone they want
in the future. And we’re left wondering what good it does to oust a corrupt
regime if the new regime is too timid to stand up.
Senator Ben Sasse, in his questioning of Zuckerberg, asked about the
definition of hate speech, which Zuckerberg was hard pressed to define. There
are large categories we can agree on, such as calling for violence. But Senator
Sasse was more concerned about the “psychological categories.”
Sasse: “You use language of safety and protection earlier. We
see this happening on college campuses all across the country. It’s dangerous.
40% of Americans under age 35 tell pollsters they think the First Amendment is
dangerous, because you might use your freedom to say something that hurts
somebody else’s feelings.
Those are frightening and discouraging statistics.
YouTube is another supposedly neutral online platform—i.e.,
a non-news site, accepting all views (with the exceptions of those terrorist,
violent, or other illegal activities we already agree on)—that has been
censoring content based on political leanings. PragerU is involved in a lawsuit
because YouTube deemed a number of their short information videos “unsafe for
the community.” No profanity. No sketchy images. Nothing that couldn’t safely
be watched by a 10-year-old. There seemed to be no standard by which certain
videos were disallowed, so there was no way to “correct,” if there had been
errors. But in the end, it looks like they were censored for having
conservative political views.
Conservative comedians Steven Crowder and Owen Benjamin have
been YouTube censored for much the same reasons. Owen Benjamin was on with
Andrew Klavan today, and he quoted comedian George Carlin as saying, “Political
correctness is fascism disguised as politeness.”
Fascism is statist tyranny. Snowflakes worried about hurt
feelings need to get a clue: they’re line of thinking is what led to millions
of people being killed by their own governments in the last century. But, then,
I also read this today:
According to a new survey released on Thursday by the
Conference on Jewish Material Claims Against Germany, fully 41 percent of
Americans don’t know what Auschwitz was, including two-thirds of Millennials.
Approximately 22 percent of Millennials had not heard of the Holocaust, and 41
percent of Millennials thought 2 million or fewer Jews were murdered during the
Holocaust.
Ignorance is probably the result of “political correctness,”
or, if you will, fascism, running amok in our education system. But it’s no
excuse. We don’t have to get along with people who want to tyrannize us; we
just need to stand up to the bullies. And educate them if there’s any openness
in their minds to allow for it.
Why were those first Ten Amendments put in the Constitution?
Because the founders had the foresight to envision a time such as ours, when people
have forgotten what was supposed to be self-evident.
