Sincerely Held Religious Belief

[N]o bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise.

—Justice Neil Gorsuch

As if I didn’t write a long enough post on Monday about the Masterpiece Cakeshop ruling, I thought I’d add some more.

On Monday we dealt mostly with Kennedy’s majority opinion. But there were actually four concurring opinions: Kennedy’s (joined by all but Ginsburg and Sotomayor), Kagan (joined by Breyer), Gorsuch (joined by Alito), and Thomas (joined by Gorsuch). Plus, of course, there was the dissenting opinion.

Justices ruling on Masterpiece Cakeshop v. Colorado Civil Rights Commission,
image from SCOTUSblog

There’s something of an argument going on between Justice Kagan and Justice Gorsuch. The SCOTUS world isn’t like much of anything else we have. These two differing people don’t sit in a room and discuss or debate one another. They ask different questions during oral arguments, which reveals something of what they’re thinking. But it isn’t until the written opinions that you see them challenging the opinions of others.

Justice Kagan agrees that the Colorado Civil Rights Commission was wrong in their anti-religious approach to the baker. But their tone, and approach, is pretty much all she finds wrong.

There’s a comparison in this case with the Jack case—a man who requested a cake with an anti-same-sex marriage message written on it, including a Bible verse, and was turned away by three bakers, in which case the CCRC ruled that the bakers did not have to create a cake with a message against their beliefs. Kagan says the difference is that they would not have made such a cake for any customer. But she claims Phillips, the owner of Masterpiece Cakeshop, does make wedding cakes for anyone but same-sex customers.

Justice Kagan writes,

The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.

There’s a long footnote comment at that point (I’ve left out the citations):

image from Amazon.com

JUSTICE GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. JUSTICE GORSUCH can make the claim only because he does not think a “wedding cake” is the relevant product. As JUSTICE GORSUCH sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrating same-sex marriage.” But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike.

Let me clarify here, to help out Justice Kagan. A marriage—and the ceremony and celebration surrounding it, called a wedding—is a particular thing. It has been that particular thing for thousands of years. The particular thing that is defined as marriage is a contract between a man and a woman indicating that their union is permanent, includes the human reproductive behavior that can lead to offspring, and in most cultures is exclusive. They make the contract before the community—by way of church and law most usually—thereby allowing the community to expect from them the social benefits that marriage provides.

A ruling by five justices, legalizing same-sex marriage by fiat, does not change the definition of actual marriage; it cannot. The power to do so was never granted to those judges by the people, nor by their law, the Constitution. Nor could a majority of people voting to make it so among a particular people change the definition of what marriage actually is.

Add to that the belief that the original definition of marriage was ordained by God, and to the believer the very attempt to change it becomes immoral.

As Justice Thomas says in his concurring opinion:

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids.

To clarify further, it is not homophobic, bigoted, or otherwise evil to believe in the real meaning of marriage. There is nothing inherently anti-homosexual about that. Homosexuals have always been allowed to marry a person of the opposite sex, who is not married to someone else, who is not a close relative—just like heterosexuals. It’s just that they are now expecting all cultures the world over to throw out real marriage and redefine it as something akin to “in a current sexual relationship with a person of my choosing.” And then they choose someone to whom they cannot, by definition, marry.

For someone who made a covenant to a spouse and is living that out decade after decade, to be told my covenant is now transformed into nothing more than an announcement of who I’m currently choosing to hook up with—that is utterly disrespectful. Yet you’re not getting gay-hate parades. You’re not getting gay persecutions. You’re getting quiet business owners who simply want to go about their businesses while living their religions—and they’re being persecuted and prosecuted for it.

In the end, we know the meek will inherit the earth. In the meantime, if we’re truth seekers, we should seek justice for not just one baker, but for all the other marriage-honoring people who are being persecuted.

So, back to this case. Justice Gorsuch is correct: a “cake celebrating same-sex marriage” is not the same as a “wedding cake.” They have the same ingredients, but not the same intent.

The same-sex couple would have been free to purchase a generic wedding cake, already produced by the baker (or, rather, whatever was available on the day they wanted it), and they could take it and use it for whatever purpose they chose, without ever burdening the baker with knowledge or responsibility for how the confection would be used.

But that is not what they asked. They asked for a custom designed and produced cake for their same-sex “wedding” celebration. Phillips told them he does not design and create cakes for such an event. He was asked by the mother of one of the couple, and he would not sell such a service to her either, even though she was heterosexual. It wasn’t about the sexual orientation of the customers—whom he was willing to serve with any of his other products. It was about his unwillingness to use his God-given talents to celebrate an event that, in his view, is not a real wedding, and further is offensive to God.

Kagan’s view can only be correct if a same-sex “marriage” is self-evidently exactly equal to an actual marriage. At the time of the dispute, not even the state of Colorado saw it that way.

During the oral arguments during Obergefell, Justice Kennedy was fully aware of the danger to religious people, who would not change their beliefs simply because a ruling made a legal path open to a certain group of people. And he seemed to at least give lip service to the importance of protecting religious liberty.

And to be fair, the Court has ruled unanimously several times in recent years to protect religious liberty. It’s just that there’s always this rather arbitrary “unless the government has a compelling interest” threat hanging overhead. In this case, fortunately, we still have 7 of the 9 justices willing to recognize the need to support religious freedom, although the reasons of at least 3 of them feel rather tentative, more like “don’t be overtly anti-religious.”

In the absence of Justice Scalia, I’m happy that we have yet another justice who is not just clear, but enjoyable to read. There’s this section of Justice Gorsuch’s concurring opinion in which he uses a Goldilocks metaphor in referring to the changing standards used by the Colorado Commission:

Goldilocks, image from here

At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general; understanding it as celebrating a same-sex wedding is too specific; but regarding it as a generic wedding cake is just right. The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here.

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right—fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper.

Justice Thomas ends his concurring opinion with a reminder that he told us so:

In Obergefell, I warned that the Court’s decision would “inevitabl[y]… come into conflict” with religious liberty, “as individuals… are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy” [Alito]. If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected.

The battle is being waged. I hope the meekly religious can hang on until it’s time to inherit the earth.

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.

Red Tape Cutting

There are many things wrong with regulations—almost as an entire category:

·         The definition.

·         The negative economic effects.

·         The beyond the Constitution regulatory tyranny.

As I’ve mentioned before, our founders, when they used the word in the Constitution—i.e., “regulate Commerce,” and “well-regulated Militia”—they meant

to make regular—to make sure something can happen regularly, without blocks or interference. That’s what the founders meant by regulation interstate commerce.

But in today’s government, regulation means something else: governmental power to decide when, how, and whether something can happen. It’s arguable that all government regulation prevents, rather than provides, regularity of something happening.

What we need is for government—especially government regulations—to get out of the way, so that what we want to happen regularly, like commerce, can happen freely.

President Trump cuts red tape
in ceremony in December 2014

A Just the Facts article, “The Effects of Regulations on the Economy,” by James D. Agresti, shows how regulation has actually prevented what it claims to be trying to do:

For example, a 2015 working paper from the Harvard-Kennedy School of Government found that regulations are likely the main reason why community banks’ share of the U.S. banking market fell from more than 40% in 1994 to around 20% in 2015. This is because “larger banks are better suited to handle heightened regulatory burdens than are smaller banks, causing the average costs of community banks to be higher.” Likewise, a 2016 paper in the DePaul Business and Commercial Law Journal found that the 2010 Dodd-Frank “Wall Street Reform and Consumer Protection Act”:

could actually be enhancing the consolidation of the banking industry, in direct opposition to its principal purpose—eliminating “too big to fail” banks. While the industry has intentionally trended towards consolidation in the past, the current dramatic increase of consolidation of banking assets is likely an unintended consequence of increased regulation. This consequence comes from astronomical regulatory costs passed on to community banks, as well as increased capital requirements that diminish these banks’ competitiveness. Dodd-Frank has exacerbated this problem, and it will likely result in further increased consolidation of the banking industry.

What do we keep saying about the unintended consequences of government interference?

If the government wants to implement something beyond the proper role of government, not only will government fail to achieve the stated goals; it will likely do exactly opposite of the stated goal.

Why isn’t that obvious enough that people would stop wanting government to interfere?

It’s hard to get data on the negative effects of regulation on the economy. As Anne C. Steinemann, author of the textbook Microeconomics for Public Decisions, says, it’s pretty easy to create a cost-benefit analysis that will “produce a desired outcome,” and “it is practically impossible to predict all the future impacts” of a government program, “let alone their magnitudes and their probabilities of occurrence.”

An example provided by Agresti compares pro and con arguments. On the pro side, the Obama administration drafted a report in 2014: 

Estimating the costs and benefits of major federal regulations from 2003 to 2013. It concluded that the costs were somewhere between $57 billion and $84 billion, while the benefits were much greater at $217 billion to $863 billion.

Since we were in an elongated recession without the expected recovery through most of those years, that seems like it could be just a wild invention to say, “You think this is bad? Imagine how bad it would be if we hadn’t stepped in.” You can’t exactly “prove” an imaginary alternate universe.

Meanwhile, a 2013 paper in the Journal of Economic Growth found: 

The effects of federal regulations on the U.S. economy have been “negative and substantial.” They estimate that GDP would now be more than three times larger if federal “regulation had remained at its 1949 level.”

Which is right? Probably the one that coincides with the principles that lead to freedom, prosperity, and civilization. In other words, government regulation, which is rule by unelected bureaucratic fiat—or tyranny—is unable to lift an economy out of poverty and into prosperity. So if the pro-tyranny side is claiming their interference is creating all kinds of magical benefits, chances are they’re skewing the data for their purposes or simply outright lying.

Agresti suggests there are plenty of other indicators to lead to the conclusion that regulation is a negative on the economy:

A key driver of economic growth plummeted in the wake of two major regulatory expansions in modern U.S. history. This element is productivity, and as explained by former Federal Reserve Chair Janet Yellen (and various other economists with wide-ranging political views): “The most important factor determining living standards is productivity growth, defined as increases in how much can be produced in an hour of work.”

The Journal of Economic Growth study, mentioned above, uses historical data, of which there is an abundance, and finds

that regulations have “strong and robust negative effects” on economic growth, and these “results are qualitatively consistent with those obtained from studies using the various cross-country and panel data sets on regulation.”

Notably, regulations harm the economy by harming productivity. What we can see is that federal regulations spiked under President Carter (1977-1981) and Obama (2009-2017). “In the wake of both of these regulatory expansions, productivity growth crashed,” as you can see in the chart:

Chart from Just the Facts

So, while we don’t have absolute cause-effect proof, there is plenty of evidence for reasonable people to see the harm government regulation (which is, almost by definition, over-regulation) does to the economy.

What we ought to insist on is adherence to the Constitution; that would give us plenty of evidence that freedom from regulation is good for the economy. But we haven’t tried that experiment in a very long time. The Congress has mostly abdicated its legislative authority to the regulatory arms of the executive branch. And the courts have mostly bowed to the “experts” of those regulatory commissions.

However, there has been some recent progress from this administration: the FCC’s net-neutrality repeal, HHS healthcare reforms, EPA details, some Education Department deregulation. These are actual campaign promises President Trump made that he is keeping.

There are three ways to accomplish regulatory reforms:

·         Executive orders ending the executive orders of the previous administration (easiest to do, but also easiest to reverse by a future administration).

·         Legislation requiring change, and returning responsibility for lawmaking to Congress, and, in many cases, returning the judicial functions to the judiciary, instead of leaving all powers in the hands of regulators to determine law, prosecute, and punish.

·         Reform from within regulatory agencies, which depends on appointees to champion the goal of deregulation.

·

Adam J. White, writing for the Hoover Institution (in “Trumping the Administrative State”), says, ”2018 will mark the beginning of a steady wave of agency decisions that will immediately be appealed to federal courts.” The most high-profile of these

will be filed strategically before courts staffed disproportionately by sympathetic judges in Washington, D.C., or on the West Coast. This litigation may come to resemble the lawsuits challenging President Trump’s immigration and refugee orders: Judges will scrutinize agency actions much more aggressively than before. The traditional deference by judges to regulatory agencies’ decisions is unlikely to prevail, and courts will undoubtedly invoke statements by the president or by his appointees that they see as undermining the credibility that agencies usually are afforded. (This will be quite a turnabout after Democrats less than a year ago criticized President Trump’s appointee to the Supreme Court, Neil Gorsuch, for having questioned the amount of deference” that courts give agencies.)

Of the legislative option, he says this is “an opportunity Republicans may not enjoy again for a long time.” And he adds, if they fail to use it,

It would be disappointing and ironic: Congress’s inaction is itself one of the main causes of our modern administrative state. By failing to legislate on the issues of greatest national interest, Congress creates a policy vacuum that agencies fill unilaterally with regulations. Lawmakers further compound this problem by failing to reform the antiquated appropriations process that no longer ties Congress’s oversight of agencies to its constitutional “power of the purse.”

As for the third option, he makes these suggestions for the regulatory agencies:

They can unilaterally adopt reforms to promote transparency and accountability within their own houses. Perhaps the best example of this so far are the efforts at the Justice Department and Education Department to scale back their reliance on “guidance” documents, a broad category of agency pronouncements that regulate the public but that do not undergo even the minimal procedures for public accountability otherwise required of new regulations. If these two departments succeed in reforming their own practices, they could come to be seen by the public (and by judges and legislators) as the regulatory equivalent of “best practices,” raising the bar for what we expect of other agencies.

So, we’re at a time when we have at least some reason to be hopeful.

In his conclusion, White talks about the most lasting reforms of the Reagan era; they lasted because they became systemic. They became the expected practices over several administrations. Based on that, he says,

Years from now, we may find that some of the Trump administration’s most important regulatory reforms in 2018 were the ones that attracted the least attention. Executive orders and regulatory repeals announced to great fanfare are very important; even more important are reforms changing the culture of modern regulatory agencies, achieved through sustained effort within those agencies, to little fanfare and no ribbon-cutting.

In one of the announcements, President Trump cut a big red ribbon, to mean cutting the “red tape.” I hope his commitment to that is real. And I hope the results will become sustained changes that return us to the freedom that helps us thrive and prosper.

Remember

In Sunday School yesterday we talked about an event in Joshua, when he parted the waters of the Jordon River for the people to cross (which was so Moses-like, it let the people know he was their new prophet). They made a memorial with twelve stones—one for each of the twelve tribes of Israel—to mark the place. So they and their children would remember the event.

There are a number of scriptures in the Book of Mormon that remind the people to remember the goodness of God in delivering them: from Egypt, from Jerusalem to this promised land, from bondage at various times in their history. For example, Mosiah 25:16, Alma 29:11-12, and Alma 36:2.

In addition, our sacrament prayers help us make the commitment to remember Christ our Savior always, so that we can have His Spirit with us.

Remembering is something we need to do. To remember good things that have happened. To remember good others have done for us. To honor those who have sacrificed for us.

A healthy amount of remembering helps us live better in the present.

So, on this day, we are better if we take a moment out to remember those who have sacrificed all for us.

The photo below is a a memorial here in Houston, just a slight detour from our normal route to the Houston Temple. A friend discovered it for the first time a few days ago after visiting the temple. If you don't know it's there, it's easy to miss. I remember when this was being built. It's comforting to know it's there, along with other memorials. Because we need to remember.

In my own effort to remember, I’m going to repeat much of what I wrote for Memorial Day five years ago, about Memorial Day's history, and about our need to remember.

Monday, May 27, 2013

Not Just Another Monday

I read something yesterday,* about Memorial Day, reminding me that it wasn’t until 1971 that Memorial Day, along with several other holidays, was changed from a specific date to a particular Monday, allowing for three-day weekends. The author hypothesized that something of the meaning began disappearing with that change.

Fallen Warriors Memorial--Houston
from their Facebook page

I started thinking about that, for other holidays as well. Presidents Day was one; we no longer celebrate the birthdays of Lincoln and Washington on their actual February birthdays, learning about them in school classes and elsewhere. Instead we have a holiday for family vacations, a brief college break, an extra shopping day, during which we have pretty much nothing in the way of traditional ceremony reminding us of those two extraordinary presidents.

Martin Luther King, Jr.’s birthday, celebrated on a Monday in mid-January, came after the change, so has never been truly connected to his actual birthday. Having a holiday for a single American, no matter how influential, seems odd when we only bunch our greatest, and all, presidents some Monday in February. It’s better when the day is referred to as celebrating equal rights or something—something worth teaching about in schools. But again, it’s a day off from schools, with very little in the way of traditional celebrating.

We tend to keep traditions alive better when they are date specific, rather than a convenient Monday. Christmas tends to be full (overfull, at times) of traditions. The Fourth of July, Independence Day, could hardly be celebrated on a different day, and it does retain traditional parades, fireworks, and brass bands in addition to summer cookouts and family time together.

Thanksgiving is on a changing date, but always the fourth Thursday of November; it remains full of tradition. It can be anywhere from a single day off during the week to a four-day or even seven-day vacation. Easter is day specific as well, a certain Sunday after the spring equinox. There’s enough meaning attached that we get together for traditional family celebrations whether we get time off or not. So it’s possible, even without specific dates. But the three-day weekend does seem to have lessened, rather than increased, our ability to pay attention to the purpose of special days.

What if we had kept Memorial Day on its original May 30^th? Would we remember it is as something much more than the first good cookout day of summer? Would we meet together somewhere in reverence, at a cemetery or monument, and tell stories of fallen heroes? Would we remember how solemn this day is, compared to July 4^th, and compared to Veterans’ Day? I don’t know. And I don’t suppose it’s likely we’ll go back.

But here in Texas we say, “Remember the Alamo,” and of the current war against radical Islamists who attacked us 9-11-2001, we say, “Never forget.” Memorial Day was officially instituted after the Civil War, to honor soldiers who had fallen on both sides, so we would never forget their sacrifice that brought us toward full freedom, and all the soldiers since who have made that ultimate sacrifice….

We plan to see grandkids, have some Texas barbecue, and enjoy the Monday off. I expect many of you will do the same. But I hope we can all also do some grateful remembering.

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*The link had video/audio of three mournful but beautiful pieces of music honoring fallen soldiers, worth listening to.

Telling the Truth

Among the relatively few rules necessary for civilization is honoring truth. That means respecting the truth, telling the truth as clearly and accurately as we can perceive it. Truth is good; truth is moral.

There’s another moral imperative that we treat other human beings with dignity and respect. I think we can agree with that. We honor God, life, family, property, and truth. So that comes under life specifically, but also under God, our creator, and family, which gives life and passes along morals such as respecting one another.

A social argument these days is about what is required of respect. We make sure no human beings are considered less than human, subject to the whims of some superior class. We are all equal before the law. That is a founding principle of this nation—perhaps the first nation on earth founded on such an idea.

But the argument is that, if you don’t go along with everything a particular minority group insists on, you are denigrating them. This includes when you refuse to lie for them.

So the dilemma for moral people is: honor truth, or honor individuals by going along with their lie?

Transgender activists protest near the White House in
Washington, D.C., February 22, 2017. (Jonathan Ernst/Reuters)
image found at National Review

I’m talking specifically here about the transgender debate, although the social war is larger than that. But this is instructive about the larger social war as well.

There’s been a debate going on recently at National Review. J. J. McCullough recommends a compromise: He “requires sacrifice on the part of progressives, who are currently overplaying their hand in an effort to strong-arm sweeping social change as a flex of their power.” Note that is what progressives must do, formerly called liberals or leftists—which on the Spherical Model is pro-savagery, poverty, and tyranny.

Of conservatives (the pro-civilization, prosperity, and freedom crowd), he requires “broad tolerance for the reality that transgender men and women exist, and are entitled to basic human dignity, just like everyone else.”

Michael Brendan Dougherty responds to McCullough’s suggested compromise:

The demand to acknowledge someone’s “existence” is a slippery bit of a double-talk. I would be an idiot to deny McCullough’s existence. But if he said that he were a Camaroonian, rather than a Canadian, would it be his existence that I denied by contradicting him?

Dougherty adds the question, “But are we allowed to tell the truth?”

David French adds further commentary concerning that question about whether we’re allowed to tell the truth:

Increasingly, the answer is no. J.J. compares the modern dispute over transgenderism to current and recent fights over homosexuality. The comparison is instructive, but not in the way that he hopes. There has been no “compromise” over homosexuality. Instead, we’re locked in brutal legal fights over whether Christian bakers and florists can be compelled to use their artistic talents to celebrate gay weddings. Christian colleges have had to fend off challenges to their accreditation and funding (and the Obama administration raised the possibility of challenging their tax exemptions) for simply upholding basic standards of Christian sexual morality. And in California, the new sexual orthodoxy now threatens even the sale of books that deliver a disfavored message not just on sexual orientation but also on sexual conduct.

Along that tangent, I just saw a new video with Barronelle Stutzman, the Washington florist, telling the story of her persecution—not for refusing service to anyone, including the homosexual man at the heart of the case, who had been a long-time customer and friend—but for declining to use her artistic skills for an event that celebrated something against her faith. She couldn’t use her skills—which God gave her—in service of something against God’s will. Worth watching.

Back to that compromise discussion. David French concludes with this:

Treating every single human being with dignity and respect means not just defending their constitutional liberties and showing them basic human kindness, it also means telling the truth—even when the truth is hard. Any compromise that requires conservatives to grant the other side’s false and harmful premise is no compromise at all.

The uncompromising Dr. Jordan Peterson, who has been embroiled in this debate, for standing up and stating truth, has a full chapter on truth in his book 12Rules for Life. Rule 8 is “Tell the Truth, or at Least Don’t Lie.” In it he says,

image from Amazon

Taking the easy way out or telling the truth—those are not merely two different choices. They are different pathways through life. They are utterly different ways of existing.

When confronted with the choice to use the pronouns the government requires--which are lies, and are linguistically unnatural--or suffer the consequences, he chose to suffer the consequences. Because it's a way of life to tell the truth and let the chips fall where they may.

For him, this is a free speech issue. It just happens to pertain to the transgender issue. As he points out, we don’t use a particular pronoun to imbue a person with respect; we use a pronoun to identify a person we may not know anything about beyond the visible details. “He did it,” does not imply, “That-person-I-know-so-well-that-I-have-ascertained-that-person’s-chosen-gender-identity did it.” It, rather, implies, “That-male-appearing-person-whose-name-I-might-not-even-know did it.”

What a transgender person who requires a different gender pronoun—or an entirely new made-up but unhelpful-for-identification-purposes pronoun—is requiring is mind-reading. You, the person who may have never interacted with them before, are supposed to use a pronoun in reference to them that you have no way of knowing is their preference. Dr. Peterson has found that the vast majority of transgender persons who have responded in comments support him and do not prefer the weird made-up pronouns.

So what the offended persons are requiring is special consideration, far above and beyond what any of us have the ability to offer one another. They’ve got a lot of nerve. In their interactions with me and with you, what have they done to deserve our submission to the loss of useful pronouns, just because they say they are offended by standard usage? What about how offensive it is to call us offensive for simply using language that has a purpose and works? Should we be pilloried while they are not? We use pronouns when we don't know someone; these people are demanding a special pronoun even when we don't know them. What have they done to earn that special treatment from people with whom they don't even have a relationship?

So, Dr. Peterson tells the truth. He gets attacked for that, quite a lot. But he also gets the respectful attention that allows him to share a great many truths. Probably a good outcome. Telling the truth wins.

Dr. Michelle Cretella, president of the American College of Pediatrics, put out a short video in December 2017 (full video below) talking about what happens when you deal with the truth and when you don’t.  She offers one case from a number of years ago:

I had one little boy, a patient we’ll call Andy. Between the ages of 3and 5 he increasingly played with girls and stereotypical girl toys, and started saying he was a girl. I referred the parents and Andy to a therapist. Sometimes mental illness of a parent or abuse of the child are factors. But more commonly, the child has misperceived family dynamics and internalized a false belief. In the middle of one session, Andy put down the toy truck, and held onto the Barbie, and said, “Mommy and Daddy, you don’t love me when I’m a boy.” What the therapist learned is that when Andy was 3, his sister with special needs was born. She required significantly more of his parents’ care and attention. Andy misperceived this as, “Mommy and Daddy love girls. If I want them to love me again, I have to be a girl.” With family therapy, Andy got better.

Today, doctors would insist that the parents alter the world to support Andy in his delusion, and give him puberty blockers—which, when used in adults for prostate or gynecological problems, are known to lead to memory loss, heart disease, strokes, diabetes, cancers, and emotional problems such as the one the experts claim to be preventing.

Additionally, doctors might offer surgical interventions such as a double mastectomy or penis removal.

While gender dysphoria is a treatable mental illness, and in many cases disappears by puberty or adulthood even without therapy, the current “treatment” is to permanently disfigure and sterilize—not so that a woman can become a man, or that a man can become a woman, but so that they can impersonate what they are not.

Asking the world to lie for them, and to them, is not going to change reality. Telling them the truth, while also being respectful of their worth as human beings, might actually help far more. 

Ennui and Evil

We had another school shooting, this past Friday. Too close to home. It was at Santa Fe High School, about 30 miles south of Houston, toward Galveston. It’s a little over an hour from our home, near where we go to pick strawberries in the spring. I didn’t know anyone there, but almost right away a friend asked for prayers from Facebook friends for her relative who was a teacher at the school.

News report following the Santa Fe shooting
screen shot from here

Santa Fe High School has been in the national news before. You might recall, back in 2000, the Supreme Court ruled in Santa Fe Independent School District v. Doe, on the question, “Whether petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause." SCOTUS ruled 6-3 that it did.

There were larger questions in the case as it came up. The majority religion in the area was Baptist. The Does (the unnamed plaintiffs) were Catholic and Mormon. The Mormon family did not object to prayers at graduation and football games. What happened was that a particular teacher, in class, handed out flyers to students encouraging them to attend a revival meeting—clearly inappropriate. But that same teacher also harangued the Mormon student in front of other students, insisting that Mormons belong to a cult. That should never happen in a school, or anyplace else that we expect civilized behavior.

If I had been the mother of such a child, you can be certain the Mama Bear teeth and claws would have come out in protection of my beloved cub. That family joined in a class action suit with the prayer-objectors, although it was the establishing—or favoring—of one religion over all others that was at issue.

The families filed anonymously with good reason: the school district attempted to “out” them through various means, which were harshly condemned by the judge. In other words, what we would normally see as simply pro-religious behavior was, indeed, anti-any-other-religion behavior. And at a public school, no student should be required to submit to that sort of atmosphere.

It's harder to see how someone could be harmed—or forced to participate in a particular established religion—at a football game prayer. The issue there was that a particular chosen chaplain always gave the prayer. Respecting other religions by taking turns, or having various students apply to pray would have solved that issue. But by the time it got to the Supreme Court, it became an opportunity for an overreaching court to actually limit religious freedom.

The ruling ended up giving permission for a student-led prayer at a solemn, once-in-a-lifetime event such as a graduation, but not giving permission for student-led prayer at football games. The original ruling allowed for “non-sectarian and non-proselytizing” prayers and discussions at the school. The school district went ahead with graduation prayers following students’ voting for that. But then the district appealed based on the “non-sectarian and non-proselytizing” phrase, and lost even more.

In the dissent, Justice Rehnquist pointed out that the majority opinion "bristles with hostility to all things religious in public life.” For one thing, the policy change being ruled on, going against the original ruling, had never been put into action, so no one could have been materially harmed by it. SCOTUS legislated from the bench to prevent a possible future violation of the Establishment Clause. And second, Justice Rehnquist asserted that the speech in question would be private, chosen and delivered by the speaker, rather than public, school-sponsored speech.

overhead view of  Santa Fe High School
image from here

I’m bringing this up because of the irony of preventing a community that wants to have prayer—that has even had students vote in favor of having prayer—from having the free exercise of religion, which is the essence of the First Amendment. And now, that same community that was prevented from exercising religion is faced with the evil of a school shooting.

Is there a direct correlation? I don’t know. The prayer in school question goes back much further—before I was in school. When I was in first grade, I had a teacher who decided to disobey what she deemed a wrong decision and have us bow our heads for our own private prayer every day anyway. No one complained.

One thing we do following a school shooting is offer prayers for the victims and their families and friends. That is good and right to do. Anti-gun people complain that that is doing nothing. But what we really needed was prayer in schools all along—or, I should say, the atmosphere in which prayer is natural, normal, and encouraged. Because when you have an atmosphere that honors God, you’re a lot less likely to have an atmosphere that cultivates mass murderers.

Back when I was in high school, people brought rifles, in a rack in their pickup trucks, or in their cars, so they could go deer hunting after school. The guns themselves, or their prevalence, did not increase our danger—because no one intended to use them for mass murder. People carried knives to school too. We didn’t need metal detectors, or armed teachers, or policies that didn’t tolerate even a paper gun or a pop-tart bitten into the shape of a gun. We didn’t have mass murders, because we didn’t have mass murderers among us.

So the question is, why are there mass murderers among us now?

The answer is going to be cultural. When you have savagery and you want civilization, you need to have a preponderance of people living the rules of civilization. And that hasn’t been happening for a while.

We’ve been looking at various possible causes, which, if any single one was the actual cause, we could address it. If only it were that easy.

There’s the fatherless home issue. But Friday’s shooting was someone from a two-parent family. No record, like the Parkland shooter, where there were multiple calls for police to come to the home. The parents seem duly shocked.

There’s mental illness, and medications used to treat it. We may not know enough yet, but that doesn’t appear to be part of this scenario. It may be a factor in some others, but not all.

People have talked about the bullied child, the loner, the unaccepted one. If that were the causal factor, some people think we could address that with better inclusion skills.

There’s video game addiction. But it doesn’t seem to be just any game for any person. There’s a problem with single shooter games, where the “win” or the “score” comes from killing multiple innocent people—in the game. So they look like humans, and the reaction to doing that may lead to desensitization. But only for some people who can’t, or won’t, separate fantasy from reality.

Along those lines, Dennis Prager talked today about ennui. That’s beyond boredom, to world weariness. The world weary youth attempts to address this undesirable feeling with excitement, for some sort of adrenaline rush. In a mind without purpose or meaning—without civilization—that might mean acting out violence for the adrenaline hit more than because of any hatred or other rationalization.

One of the best explanations I’ve seen was written by David French this past weekend. He was referring to an explanation by sociologist Malcolm Gladwell from 2015, who in turn referred to research by Stanford sociologist Mark Granovetter. Granovetter’s theory is that we should not be looking at these shootings as isolated incidents. We are essentially looking at a slow-motion riot. Someone starts it—and that seems to be the Columbine shooters. And others who would not start an action on their own become willing to do it along with other bad actors.

French explains the theory this way:

In the elegant theoretical model Granovetter proposed, riots were started by people with a threshold of zero—instigators willing to throw a rock through a window at the slightest provocation. Then comes the person who will throw a rock if someone else goes first. He has a threshold of one. Next in is the person with the threshold of two. His qualms are overcome when he sees the instigator and the instigator’s accomplice. Next to him is someone with a threshold of three, who would never break windows and loot stores unless there were three people right in front of him who were already doing that—and so on up to the hundredth person, a righteous upstanding citizen who nonetheless could set his beliefs aside and grab a camera from the broken window of the electronics store if everyone around him was grabbing cameras from the electronics store.

The theory goes that the Columbine shooters laid out a script, and others have followed it.

Researcher Ralph Larkin examined the twelve major school shootings in the United States in the eight years after Columbine; eight of the twelve perpetrators made explicit reference to the Columbine shooters. Looking outside the US, he examined eleven school shootings between 1999 and 2007; six of the eleven were copycat versions of Columbine. In addition, he looked at eleven cases of thwarted shootings during the same period; all followed the Columbine script.

Friday’s shooter wore a long trench coat, like the Columbine shooters. This is ostensibly to hide a longer weapon. But the 17-year-old perpetrator wore it daily, like a signature—in Texas where the weather was 90 degrees and humid. There were explosives placed, as in Columbine. I don’t know whether he was addicted to video game killing; he may have been. But there does seem to be evidence that he admired and emulated the legend of Columbine. If only someone had noticed that way ahead of time.

As Gladwell says, “Let’s not kid ourselves that if we passed the strictest gun control in the world that we would end this particular kind of behavior.”

That’s grimly pessimistic.

Riots always end—after lots of destruction. But they do end. Typical riot control involves strong security forces controlling, dispersing, and arresting rioters. Sometimes riots can be prevented by the presence of strong security forces and the announcement that heavy penalties, possibly even death, could result for rioters.

In this “mass shooting” riot, they’re already dispersed. We can try to control, with various safety measures around schools aimed at thwarting mass shooters and/or bringing them down quickly. Sometimes they don’t care about the threat of heavy penalties or death. They may count on death. The last two have been taken alive, but that is rare. And no school shooter ever gets away with it and goes on with life. Not one.

David French ends his essay with this: “There are young men in the grip of a terrible contagion, and there is no cure coming.”

He may be right that there is no cure in sight. But that doesn’t mean there isn’t a cure that we can eventually find. We must.

I don’t know what the specific actions we must take will be. But, step one, if you’re a parent and want your kids safe: pull them out of school and homeschool. There are plenty of good reasons for that; safety is only one. Providing your child with civilization is even more important.

Another step might involve profiling, recognizing the kids who are showing signs of acting out this particular Columbine-inspired fantasy. We need a way to intervene without trampling the rights of innocent people. That’s a big challenge.

And, somehow, we need a more civilized total society. We have to say this is rock bottom; we can’t endure with this evil among us. Then we follow the rules of civilization so thoroughly that we move up out of savagery until those savage acts again become unthinkable.

It comes down to this: There is evil among us. We mostly have control only over ourselves. So we protect ourselves and our families—and outward from there as best we can. And we live lives so full of goodness andpurpose that there is no room among us for world weary ennui or any other excuse for riotous evil.

So we pray. And may God bless us as we do what we can.