Unrighteous Dominion

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.

A good swat happened this past weekend, in Kentucky. 

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.

Introductory paragraph of the opinion
from here

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

God, CHRISTIANITY TODAY https://www.christianitytoday.com/history/issues/issue-33/secretreligion-of-slaves.html (last accessed Apr. 11, 2020).

[iv] Footnote in the TRO: See Mormon Pioneers, PIONEERS, https://www.bbc.co.uk/religion/religions/mormon/history/pioneers_1.shtml. (last accessed Apr. 11, 2020).

[v] Footnote in the TRO: See Jane G. Rainey, Blaine Amendments, THE FIRST AMENDMENT ENCYCLOPEDIA,

https://www.mtsu.edu/first-amendment/article/1036/blaine-amendments (last accessed Apr. 11,2020).

[vi] Anti-Semitism in the U.S.: Harvard’s Jewish Problem, JEWISH VIRTUAL LIBRARY, https://www.jewishvirtuallibrary.org/harvard-s-jewish-problem (last accessed Apr. 11, 2020).

[vii] Judge Walker refers to Trinity Lutheran, 137 S.Ct. at 2026 (Gorsuch, J., concurring).

[viii] In this last phrase, Judge Walker is quoting from Robert Bolt, A Man for All Seasons 141.

What Are the Inalienable God-given Rights?

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:  

image from here

·         Right to determine how your property is used—right to control and use property.

·         Right to benefit from the use of your property (as you’d benefit from using the milk from a cow you own).

·         Right to transfer your property to another—by selling or giving.

·         Right to destroy/dispose of your property.

·         Right to exclude others from using, benefiting from, or destroying your property.

image from here

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 from having 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.

Partial Victory for Religious Freedom

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.

screenshot from this video

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.

another screenshot from this video

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.

As David Harsanyi wrote this about the case a year ago: 

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.

Self-Evident No Longer

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.

Another Nail

On February 16, the Washington State Supreme Court ruled on the case of State of Washington v. Arlene’s Flowers and Ingersoll v. Arlene’s Flowers.

Baronelle Stutzman of Arlene's Flowers
photo from Alliance Defending Freedom

Here’s a review of what happened. Baronelle Stutzman, the owner of Arlene’s Flowers in Richland, WA, had been happily serving her friend, a gay man, for several years. But in 2012(just three months after the state invented same-sex “marriage” in a close vote) he asked her to be the florist for his same-sex “wedding.” She kindly declined. Her Christian belief that marriage is the union of one man and one woman prevented “her from using her artistic talents to promote contrary ideas about marriage.” But, while she couldn’t do the work, she gave him the names of three other florists she thought would be glad to do the event.

In a normal world, the gay man, who had been a friend and had clearly not been discriminated against because of his sexual orientation, would have simply gone to one of the other florists on the list. But this is not a normal world.

He sued her for discrimination. And then the State of Washington joined in its own suit, claiming she violated its anti-discrimination law. In 2015 the trial court ruled against her. The ruling this week was the appeal to the state’s supreme court; they ruled unanimously against her.

Her defense had two prongs: freedom of religion and freedom of speech. The court was unsympathetic to both.

A person has a right to practice their religion, says the state, but only within the limits that the state sets. If the state decides it has a compelling interest, it is free to trample religious freedom at will. The state calls it punishing an “independent social evil.” What was the evil that the kind florist did? Disagree with the state’s current opinion about sex. So they say they have a “broader societal purpose: eradicating barriers to equal treatment of all citizens in the commercial marketplace.”

A person does not have a right, the state says, to refuse to perform an event that a homosexual—or some other protected class—requests. A person is obligated to provide the service so as not to “disrespect and subordinate” someone in that class. The state believes it has the right and power to coerce specific work; the state believes it owns slaves.

It was clear in the facts of the case that Stutzman did not deprive anyone of a service; she accommodated reasonably by recommending other florists. That was a win/win solution; the customer would receive the service he wanted, and she would preserve her right to live her religion according to her conscience.

But the court disregarded the facts of the case, as well as the clear wording of the law. The court has no sympathy for this particular religious belief, so they punish for it.

But the test for them will be when a white supremacist goes to an orthodox Jewish-owned business and insists that they print the advertising for their anti-Semitic event. Or when they require a Muslim business to cater a pig farmers’ banquet. Or require a Jewish photographer to photograph the third polygamous “marriage” of a Muslim client.

It appears the law will only rule against Christians, or anyone who has the temerity to go against their preferred religious position on sexuality.

Beyond the religious freedom argument, there is the freedom of speech—or expression. When I look at a court case, I often turn to the Volokh Conspiracy (a legal blog). Eugene Volokh gives this summary:

[T]he court concluded that flower arranging isn’t sufficiently expressive to qualify. (I think the analysis should be different for people who produce material that has been traditionally viewed as expressive, such as photographers, calligraphers, printers, singers, artists and the like, though it’s not clear how Washington state’s Supreme Court would decide on that.)

It appears that courts also get to define, at their whim, what is “sufficiently expressive to qualify.” A printer has a stronger case, possibly, because actual words are involved. If a cake decorator is asked to write words on the cake, that makes a stronger case. And, if a court decides that a singer, photographer, calligrapher, or other artist is using his/her talent as a form of expression, the court might be more sympathetic about coercing use of that expression. But floral design, they have arbitrarily decided, is not really a talent, or an expression, or anything but a commercial service.

While Alliance Defending Freedom, which has been representing Stutzman, plans to appeal to the US Supreme Court, Volokh is not encouraging. He says,

I doubt the U.S. Supreme Court will review the case further: It could only review the First Amendment issue (since the state supreme court is the final decision-maker on the state constitutional issue), and the compelled speech case here is weaker than in the New Mexico wedding photographer case, which the U.S. Supreme Court refused to hear.

Even if SCOTUS were to take on the case, their decision would still hinge on Justice Kennedy’s ruling. He’s the one who heard all the evidence in Obergefell, heard the warning about religious freedom being affected, and then ruled broadly that same-sex couples have always had a right to marry—six thousand years of multi-cultural world history to the contrary.

What is particularly disturbing about this case was the extent to which the Washington court was willing to go. They punish to excess—and, again, beyond the law. A business owner is generally protected from having personal property affected by a lawsuit against the business, unless there are certain overriding factors. As David French wrote,

[I]f you doubt the court’s malice, look only to its last ruling—that Stutzman can be held personally liable for her allegedly discriminatory act. In other words, the court is willing to pierce the corporate veil to impose individual liability even in the absence of the traditional justifications for that drastic step. Stutzman didn’t commit fraud. She didn’t commingle her personal and corporate funds. She kept her private and professional affairs separate. But she still faces personal financial ruin.

Arlene's Flowers
photo from here

Remember, Baronelle Stutzman was 70 years old in 2012, at the time of the original incident—after spending 40 years as a florist. The fine was only about $1000, but she was also required to pay the legal fees of the ACLU—about $1 million—in addition to never operating her business again. Her small business never had that many assets. Add in all of her belongings, savings, preparation for retirement, and she is placed in penury with no chance of recovery. If you have any sense of justice, this seems way out of line for the crime of slightly inconveniencing a longtime customer/friend.

As I wrote in 2015:

When you’re taking the life, livelihood, home and savings of a 70-year-old woman who has always served you sweetly and cheerfully, you really need to re-think who is the intolerant one.