Archive for the ‘Common sense’ Category

Let’s Declare June 27 as Dues Freedom Day   Leave a comment

The Janis decision was all over the news on my morning commute so I was prepared when the union steward walked into my office and announced it was “union-busting” and practically put a pen in my hand to get me to “opt-in” to paying union dues. I’ve been a union member for about six years — not because I opted to become a member, but because I was not given a choice. It’s not that I object to the retirement fund or the medical insurance, but that I object to the political stances of the union which are almost never in agreement with what I believe about politics.

Image result for image of scotus union decisionI don’t do pressure as a rule. My father was a union organizer and I grew up serving coffee at the meetings, so I know all the tactics this Steward might wield. I also know that “talking shop” during work hours can get you fired. So I thanked him for the info and the card and said “I need to get back to work now.” I think he was honestly surprised that I didn’t weep over the Janis decision.

The card hasn’t hit the circular file yet, because I need to do some homework on the whole thing before I make a rash decision, but I think the Janis decision is a great thing and that we poor union slaves ought to celebrate June 27 as Freedom Day.

I don’t make a lot of secrets that I’m a libertarian. My union advocates for me to vote for the likes of David Guttenberg and Scott Kawasaki — both extreme liberals who are trying to institute an income tax in Alaska … when they aren’t favorably negotiating employee wages and benefits with the union that funded their campaigns.

Yeah, that’s collusion of the sort that, if they were in private business, would get them put in prison.  So, if I wasn’t opposed to voting for them because they want to take a chunk of the income I need to pay my bills with, I would be opposed to voting for them because they’re corrupt and possibly criminals.

But, watch! I’m willing to bet that over the next few months, as that card languishes in my suspense file, that my “brothers in employment” will exert some not-so-subtle pressure on me to comply with something I don’t agree with.

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Posted June 28, 2018 by aurorawatcherak in Common sense, Uncategorized

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Let’s Discuss Violence   1 comment

A tour around the Internet says some portion of the population is really worried about dying from gun violence … so worried they’re willing to disarm everyone in hopes that will keep them safe and to jail anyone who disagrees.

First, they need to calm down. Your chance of dying of gun violence in the United States is about 30,000 out of a population of 360 million. That’s less than 1% risk. You’re far more likely to get run over by a bus or  bitten by a mongoose than killed with a gun.

Image result for image of violenceSecond, disarming the law-abiding won’t disarm criminals or the police (rather the same thing these days) so it won’t reduce violence … it will just shift how it is done. As a small woman, I am not defending myself against the physical violence of a large man unless I have a gun, which means I am much more likely to become a victim of non-gun violence if I am disarmed. Americans use guns between 100,000 and a half-million times a year to defend themselves from violent crime. My mother was one of those people when I was in junior high and the men she frightened away from our house (by brandishing a gun) went down the road and raped a classmate of mine. Needless to say, I think the ability to defend yourself is non-negotiable.

But let’s take a look at what are the most common gun-violence deaths.

Suicide accounts for 63% of all firearm deaths in the US. It’s the most common gun-related death. And, no, the answer is not “take all the guns away and people will stop killing themselves.” I worked in the mental health field, folks, and I saw this scenario way too many times. The client would be placed in the hospital, their guns (if they had any) would be confiscated, they’d be released and someone would find them hanging in the woods by a rope. Or they’d slit their wrists or they’d save up their anxiety meds and overdose. If someone wants to kill themselves, they will find a way to do that … and do, even while in hospitals for treatment. If violating the right of self-protection was the answer to suicide, Poland, with some of the strictest gun laws in the world, would not have a suicide rate 50% higher than that of the United States, which has some of the more lenient gun laws in the world. Leaving healthy people helpless at the hands of criminals or government thugs will not significantly reduce suicides … which still account for 63% of all gun violence.

Road rage situations.  About 100 people a year die from incidents involving a gun during a road rage incident and in most cases, they were described as the aggressor in the incident, who got out of their car to confront someone they considered to be a jerk and that “jerk” defended themselves with a gun because they preferred not to be beaten to death by an angry driver. And, yes, they could be included in another figure further down.

Gangs. Violence is the accepted norm among gang members, resulting in many becoming victims of gun violence. According to the Center for Disease Control, a staggering 80% of gun homicides are gang-related.

Illicit drug trade. Yes, we could argue that drug laws are likely to result in gun violence from cops, but it’s also true that people already on the wrong side of the law are more likely to commit gun violence than the law-abiding population.

Abusive romances. I’m all about letting people put their pasts well and truly in the past, but we should acknowledge that someone who has previously physically abused a partner is more likely to do so than are those who haven’t.

Gun Free zonesOne study showed that 98% of all mass shootings happen in these places. Gun-free zone signs tell violent people this is a spot where they will encounter little immediate resistance to killing large numbers of people. As for everywhere else, assuming you’re in a state or community that allows concealed carry, these predators may be deterred since they have to wonder if there’s already a good guy with a gun on the property. It might be an explanation for why only 2% of mass shootings occur outside of gun-free zones, but it also explains why states with constitutional carry rarely experience public mass shootings.

Human predator. A significant number (about 700 each year) of gun deaths are justifiable homicide wherein a victim successfully defends themselves from criminal assault. Which, when you think about it, is amazing. If Americans protect themselves from violent crime 100,000 times a year with a gun, but only 700 predator-humans are killed … that says that an awful lot of concealed carry people de-escalate situations while having a gun in their hand … or it could mean that the predators run away when confronted with a gun.

Irresponsible gun owners. There really is no such thing as an accidental discharge of a gun. Someone pulled the trigger or caused a situation in which the trigger was pulled by an inanimate object. Still “accidental” shootings account for 4% of all gun-violence deaths. If you know someone who breaks any of the four rules of gun safety, they are one of a tiny minority of gun owners who give the rest of us a bad image.

Thankfully, the odds of anyone in the U.S. dying from gun violence each year is exceedingly low … about 30,000 out of 360 million people — so less than 1%. Now can we have a conversation about what to do with the behaviors around guns that cause these shootings rather than trying to disarm everyone in a futile attempt to end violence?

What Prisoners Want   1 comment

LELA: My guest today is long-time friend Bern S. He was a close friend and our entry into jail ministry. The friendship came first. We agreed we wouldn’t use your full name … that you’ve had enough of being infamous. So tell us a little bit about yourself.

BERN: I’m originally from the Northeast by way of Texas, but I’ve lived in Alaska for 35 years, so I think I can call myself an Alaskan legitimately. Right?

LELA:  Definitely. Alaskans don’t hand out that title casually, but you’ve done auto repair at 40 below zero, had the wits scared out of you by a bear, and hold a black belt in Copper River salmon fishing, so you definitely qualify. And you’re married to an Alaska-born woman and have Alaska-born children. You get bonus points.

Related imageBERN:  Ooo, like extra credit!  Love it! So your audience now knows I’m a family man and a salmon fisher. I also am a Christian who goes to church when I feel like it and an inventor of wood stove accessories. But that’s not why we’re here today, so ….

LELA: It’s been, what, 24 years?

BERN:  Coming up in September, yeah.

LELA:  You ended up in jail, right?

BERN:  For four years, yes. I don’t like to talk about it, but I stalk you on Twitter and this gal was going after you, so I called you up and said “Interview me!” You didn’t even know she was having a meltdown.

LELA:  I knew, but I was ignoring it. So, we’re not going to talk about what you did to go to jail. That’s in keeping with my belief that felons should have their records expunged when they’re done serving their time. If I could do that for you, I would.

BERN:  I know that. You’re one of the few people who knows the whole story. You’re also one of the few people who has supported me through all of it and I appreciate that.

LELA:  Ain’t nothing good in me. Tell me about prison.

BERN:  Yeah. It sucks. You think the punishment is having your rights taken away from you and visiting your family through glass, but there’s a lot more to it than that.

LELA:  Like?

BERN:  I think people think this is whining ….

LELA:  People think any complaint by a prisoner is whining. Just accept your punishment.

BERN:   Right. Out of sight, out of mind … unless you’re family or a good friend.

LELA:  So, whine away, man! Let them believe what they want.

BERN: Okay. If anyone qualifies for PTSD diagnosis, it’s gotta be prisoners. Not all the guards are bad. Some treat you human, but the whole system is set up to make you feel helpless and hopeless. I’ve had 20 years to think about this and they just want to break you down in hopes that you will never want to go back there again. They change cellmates, like, almost daily. You maybe get to have the same one for a month or two, but not usually. You get to know a guy and then he’s gone and you have no idea what this next guy is all about. Maybe he’s just trying to do his time like you are, maybe he’s an abusive asshole … and anything in between. And you’re sharing an 8×10 cell with him, so you are going to know each other far too well by the end of the first day.

LELA: That sounds chaotic.

BERN: It drives home that you have zero control over your life.

LELA: And you think that’s the point?

BERN: I hope they have a point. I know, you don’t think they have a point.

LELA: That’s how I’m going to write it when I use it, yeah.

BERN:  They wash all the clothes together so your underwear ends up blue or tan. I’ve heard that some prisons it’s pink. It drives home the fact that you’re sharing underwear with hundreds of guys. And then there are the scrubs and deck shoes you have to wear. At least at Spring Creek I got to wear sort of street clothes because I was one of the workers.

LELA: You got to work in prison?

BERN: I was one of the few. I wasn’t a career criminal. I had skills going in and so I got the highest paying job in the complex – 60 cents an hour doing maintenance.

LELA: By maintenance, you mean plumbing, heating, electrical repair … not janitorial.

BERN:  Technically, but when one of the guys in Mike Mod would flush his pants to cause a disruption on a Sunday morning, I’d end up having to clean up the backup, so in reality …. But the State of Alaska no longer does prison industries anymore, so I’m not even sure that my job would be available now.

LELA: Why’d they close down the prison industries? I know they used to make coffins at Spring Creek and there was a furniture store and they used to wash all the Alaska Marine Highway linens at Lemon Creek.

BERN: They said it was financial, but I don’t know how you could get cheaper than paying someone 30 cents an hour to wash clothes.When I would do maintenance, the real workers would never go into the really yuk places and they didn’t clean up feces. That was all me. And I was glad to do it because it meant I was doing something and I got paid.

LELA: Talk about how important that is.

BERN: Doing something or getting paid?

LELA:  Both.

BERN:  Boredom is the biggest punishment. I missed my family. I missed trees. I missed my dog. But I could focus on a date when I would get out and that got me through that. I’d write letters to my wife and talk to my little girl … and my dog … on the phone. But it was the day-to-day that just ate me up. You’ve got nothing to do. The prison library is mostly a joke. There are fewer books on their shelves than on yours. And if I had to read another Zane Grey novel …. There was schooling available then too (not anymore) and I made use of that. But the fact was that I couldn’t fill all the hours I had and working helped with that. Working eight hours a day at 60 cents meant I had $4 a day. I could buy shaving creme or a pad and pencil or an anniversary card for my wife. If I saved up, I could get a gift for my daughter without having to ask my wife to put money on my books so I could buy it.

LELA: I hear it in your voice. It’s humiliating even 20 years later.

BERN: Humbling but not as bad as the mind-numbing boredom of staring at four walls with nothing to do and knowing tomorrow would be exactly the same. Imagine doing that for two and a half years.

LELA:  I can’t.

BERN:  C’mon, writer chick, I bet you could if you tried. Guys would get into trouble just to break the monotony. Of course, that didn’t work out for them because they ended up in segregation staring at even closer walls and sometimes it added to their time. I was fortunate that I had a job to go to because I served exactly the amount of time I was required to serve and not one day more and I didn’t lose even an hour of good time. I couldn’t have done that with nothing to do.

LELA: Good time?

BERN: If you’re good, they take one day off your sentence for every three days served. So, I was sentenced to six years to serve (with probably after), but I only actually served four years.

LELA: And you served the last 18 months in a halfway house, right?”

BERN: That was a whole other kind of humiliating and frustrating, but the good thing there was I could go to a legal job with real wages. I remember how annoying it was that the halfway house would put it in an account and refuse to let me have more than about 20 bucks. I wanted to be able to contribute to my household and they wouldn’t let me. “Well, what if your wife decides to leave you? You’re going to need that money when  you get out.” My release counselor actually said that. I was, like, “man, if she didn’t leave me yet, she’s not planning to leave me now.” Meanwhile she’s driving a car that’s falling apart and working two jobs trying to keep our daughter in clothes and I’m still having to ask her to help me with my expenses. It sometimes seems like they were trying to break up marriages.

LELA: A friend who was a prison guard claims that is part of it and a part he really regretted being a part of.

BERN:  Tom?

LELA:  Yeah.

BERN:  One of the ones who treated us like humans and the administration made him pay for that.

LELA:  He’s enjoying his retirement. So, then you got out. You’re still married. You have two children … they’re adult-ish now. You own your own business. You own a home. You vote in elections.

BERN:  My wife is made of tough stuff … like one of those aspen trees that grows on the bluffs in Chitina. I can’t say enough good things about her. I kind of had to start my own business because the felony kept getting in the way. It just kept coming up. You’d think that after 20 years it wouldn’t be an issue, but employers … well, their insurance companies, anyway … never let you forget.

LELA: Which is why the borderline anarchists are working on a ban-the-box law. I’ll keep working to my dying day to make our criminal justice system stop stigmatizing people for life. It might not work, but I’m not going to stop. Is there something you want ordinary people to know about you and people who have been through what you have been through?

BERN: We’re people just like you. Some of us went into the system for something we didn’t plan and would take back if we could. Others made law-breaking a career, but you know, they don’t put people in jail for that in Alaska anymore. Human have brains and deserve better than staring at four walls for years on end. But more than that, there’s dignity in work and in getting paid real money for real work and prisoners deserve dignity. The reason I called you up was that the person going after you was totally wrong. I’m not illiterate or retarded and neither were most of the guys I was in with. Don’t make the mistake of thinking drug-dealers are ill-informed or idiots. They worked in a system that involves the voluntary exchange of goods. They ran a business, even if the government didn’t get a cut. So it’s not up to suburban housewives and college graduates with a degree in social fluff to decide for us what we can and cannot do with our lives and what few options we have when we’re inside. I participated in a university scientific experiment that involved giving a periodic blood sample and keeping track of what I ate. I actually bought my wife flowers for Valentine’s that year. I got asked last year to take part in a follow-up to that study and I did. If it was a good cause, I’d be glad to take part in an experiment like that now. There’s one where you get to spend a couple of weeks in a closed-up hotel while they try to expose you to the flu so they can develop a vaccine. They pay you $5000 for it. I’m trying to figure out how to put my name in for it because it sounds like easy money … depending on what the actual paperwork says when I read it. I’m obviously going to read that pretty carefully before I sign my name on the dotted line. But more than that … the flu kills and so I think an actual effective vaccine against it would be a good idea and I’m willing to help with that. And you see, that’s where I’m trying to find significance in my culture … a feeling that I’m still a contributing member of society even if society thinks I’m a pariah.

Your troll was partially right … in a broke-clock-right-twice-a-day way — that there were some awful things that happened in the past. Prisons were awful back in the day for very different reasons than they’re awful now. There were medical experiments that were done on prisoners that were cruel and just wrong. You knew about those?

LELA:  Sure. The LSD experiements and the Malaria Project come to mind. There were a lot more than that, but I’d have to look them up to remember them all. But those were decades ago (literally 40+ years ago) and prisoners prevailed in court and are now some of the most highly-protected medical research subjects in the country.

BERN: Absolutely. There are laws — informed consent laws that prisons and medical researchers have to abide by these days. You can even consult your own lawyer before signing. And there’s always a prisoner advocate about to consult too. They won’t let you not consult them. Your troll apparently doesn’t know about those. Which isn’t very surprising. A lot of people don’t actually study anything. They read something a website they agree with writes and they just agree with it without checking the facts. They do it on both ends of politics. And then again, there’s all the people who have never talked to someone like me, let alone anyone actually in prison now, and just assume crap as if they know. There’s this attitude … I run into it even now … that if you’ve ever had a run-in with the law, you must not be very bright. Sometimes I want to just grab people by the shoulders and scream “You could be next, you naive idiot.” Of course, that would be considered assault so I’ll settle for saying it on your blog.

LELA:  They’d probably arrest me for it too. Thank goodness for the internet where you can’t actually shake someone to death. Yes, there are ethical concerns in prisoners taking part in research. There are ethical concerns in non-prisoners taking part in research. It’s research and you could die of the flu if given the flu. But I can’t help think that people like her who object so strong have bought the line that research can be done with computer models instead of actual living subjects. They scream and yell about animal research, never asking if that means the drug will be tested directly on humans and then they scream and yell about human research … and I’m not sure what they think the alternative is. And yet if they get some condition, they want to be treated. Maybe doctors should just start saying “Well, sorry, but we had to stop that research because we couldn’t get enough test subjects.” Then they’d sue the doctor for not treating their condition.

BERN:  Your uncle is a researcher, right?

LELA:  Cousin … yes. I can’t imagine where MS treatment would be today if the attitudes that prevail now were in existence in the 1970s through the 90s.

BERN: More to our topic, HIV research was stymied in the 1980s by concerns about using prisoner research subjects. There’s more IV-drug users in the prisons than in the general population, but you know, they might feel coerced if asked to take part. Imagine how many people died because there were all these huge hurdles to allowing someone like me to take part in a clinical trial just because I was behind bars.

LELA:  And the amazing thing to me is that my advocating for that got me hit with a label of not being compassionate.

BERN:  There’s a lot of phony compassion out there … people who haven’t got a clue, but are certain they know better than the people who are actually involved. They define compassion oddly. And they frequently base their opinions on the opinions of those who haven’t been involved. Nobody should ever be forced take part in something they don’t want to take part in. Everyone should have a choice. Prisoners are pretty good at saying “hell, no!” when it’s something they don’t want to do because they’re already doing something they don’t want to do. But not understanding the basic need for people to have significance … to feel like they’re contributing to society … that seems pretty uncompassionate to me. Yeah, you need to make sure they know what they’re doing, but let people who have so few choices in life make their own choices about whether to give a little blood or whatever. It might just help them to feel like a worthwhile human being again.

https://www.scientificamerican.com/article/should-prisoners-be-used-in-medical-experiments/

 

It’s Not Freedom if You Can’t Exercise It, Pt 5   1 comment

There were 2 Justices who dissented from the majority opinion in Masterpiece Cakeshop. Ginsburg and Soyomayor. They believe their colleagues should uphold the same-sex couple’s “right” to not be offended or frustrated.

 

Ginsburg has no problem with the “general rule that [religious and philosophical] objections do not allow business owners and other acts in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Image result for image of wedding cakeBasically she concludes that the arguments the majority makes do not comport with her view of the world and therefore, they should have voted differently.

“The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that
Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple.”

You might not notice the distinction – which is based on the idea that Phillips’ beliefs are less valid than the bakers noted in the Jack’s case. If Ginsburg wanted to be honest, she would simply say “Gays must be protected at all costs. Everybody else shut up.”

Jack’s message was offensive, while any message in a cake requested by a gay couple was not. It doesn’t matter to Ginsburg that the Commissioners were clearly biased against Phillips’ religious beliefs. All that mattered was that Phillips violated Colorado law. Forget that the law might not properly protect his freedom of conscience and instead rule on whether any gays suffered injured feelings.

I’ve never really encountered an opinion of Ginsburg’s that I found well-reasoned and this is no exception. I wonder if Sotomayor might have written a better one and why she declined to do so.

 

I encourage people to read the decision text for themselves because it really does an excellent job of explaining why evangelicals really were concerned about the direction the Obama administration had taken the Court and the need for more justices who rule on precedent and actual reasoning rather than feelings and social justice shenanigans.

Posted June 9, 2018 by aurorawatcherak in Common sense, Uncategorized

It’s Not Freedom if You Can’t Exercise It, Part 4   Leave a comment

Clarence Thomas concurred with the majority opinion, writing separately on Jack Phillips’ free speech claim. I like Thomas’ opinions because they are very clearly worded and he doesn’t devolve into legalese.

He begins by agreeing that the Colorado Civil Rights Commission violated Jack Phillips’ right to freely exercise his religion when it treated his religious objections differently from other bakers’ secular objections in a similar case (Jack), showing overt hostility to Phillips’ religion.

Image result for image of wedding cakeThe SCOTUS did not address the free-speech claim because there were uncertainties in the record. Phillips claims he refused to create a custom wedding case to celebrate their wedding case because he would have refused to bake a custom wedding cake for any same-sex couple. The customers asserted that he refused to even sell them a premade cake, which he denies. (Note to self – when controversy comes your way, hit record on your cell phone so there’s no question of what was said). The Colorado Court of Appeals resolved that factual dispute in Phillips’ favor, describing his conduct as a refusal to ‘design and create a cake to celebrate a same-sex wedding.” The Commission’s order required Phillips to sell “any product he would sell to heterosexual couples” including custom wedding cakes, yet even after that description, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech, reasoning that an outside observer would conclude that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect … flouting “bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

The 1st Amendment is applicable to the States through the 14th Amendment and it prohibits that abridgment of “freedom of speech.” In Hurley it was ruled that public-accommodation laws do not target speech, but instead prohibit the act of discrimination against individuals in the provision of publicly available goods, privileges and services.” But sometimes protected speech is impacted and then the 1st Amendment has had primacy. In Hurley, the Court unanimously held that the law requiring the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian and bisexual Irish Americans violated the sponsors right to free speech because parades are a form of expression and application of the public-accommodations law altered the expressive content of the parade by forcing the sponsor to add a new unit, suggesting that the sponsor agreed that people of gay, lesbian or bisexual orientation have as much claim to unqualified social acceptance as heterosexuals and would tend to imply that their participation “merits celebration.” The SCOTUS rejected the notion that governments can mandate “thoughts or statements acceptable to some groups or indeed all people” as the “antithesis” of free speech. “The Constitution limits the government’s authority to restrict or compel ‘expressive conduct’. The ability to choose what not to say is a primary manifestation of free speech.

Philliips considers himself a cake artist, symbolized by the logo for Masterpiece Cakeshop being a painter’s palate with a paintbrush and baker’s whisk. He designs the cakes, he sits down with each couple to consult on the design. He delivers the cake and sometimes stays and interacts with the guests at the wedding. Guests often recognize his work and seek out his bakery afterward. To him, a wedding cake inherently communicates that a wedding has occurred, a marriage has begun, and the couple should be celebrated. But it’s not just Phillips who believes that. Society has viewed wedding cakes by the symbols since before the American Civil War.

“Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message.”

Colorado’s public-accommodations law would alter the expressive content of Phillips’ message. Forcing Phillips to make custom wedding cakes for same-sex marries 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.”

Thomas gave due consideration to prior rulings by the Supreme Court showing that the government is not permitted to compel speech or “expressive conduct”. He also addressed the argument that Colorado’s law allowed it to compel Phillips’ speech to prevent the same-sex couple from being denigrated, made to feel inferior or subjected to humiliation, frustration or embarrassment.

“These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Again, Thomas gives a lot of consideration to prior SCOTUS rulings.

He also points out what Phillips actually said to the respondents in this case. “I will make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” And, then a black justice points out the Court allows racist, demeaning and threatening speech toward blacks. Ruling that the Constitution protects same-sex marriage does not immediately require that those who express a different view are not protected in expressing those views.

Thomas engages in a little “I told you so”, noting that he warned during Obergefell that the Court’s decision would “inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” He predicts further conflict unless the freedom of speech principle is upheld going forward.

Part 5

 

 

It’s Not Freedom if You Can’t Exercise It, Pt 3   Leave a comment

“When the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble.” Neil Gorsuch, Supreme Court justice

Gorsuch wrote a concuring opinion in Masterpiece Cakeshop v Colorado Civil Rights Commission and Justice Alito joined him.

Image result for image of wedding cakeGorsuch stated that the decision hinged on the hostility of the Commission toward Phillips’ beliefs and on their failure to show that their “restriction on religion both serve(s) a compelling interest and (is) narrowly tailored” (Church of Lukumi Babalu Aye v Hialeah (1993)).

The Colorado Civil Rights Commission failed to “act neutrally toward Jack Phillips’ religious faith.” It allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments, “yet it denied the same accommodations to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs.” The Commission’s reasoning was the Phillips’ religious beliefs are “offensive”, in its judgement.

Gorsuch admits that he wrote this opinion mainly to address his two colleagues trying to suggest that the Commission could have acted neutrally toward Phillips’ faith when it treated him differently from the other bakers in a way consistent with the First Amendment.

“Respectfully, I do not see how we might rescue the Commission from its error.”

Mr. Jack argued that the cakes he requested reflected his religious beliefs and so the bakers could not refuse to make them just because they disagreed with his beliefs. The Commission ruled that the bakers didn’t refuse on the basis of his religious faith, but because his message was “offensive” to their own moral convictions.

How is that different from what Jack Phillips did when he refused to bake a wedding cake for a same-sex wedding? Phillips too offered to make other baked goods, including cakes, celebrating other occasions, but he would not design a wedding cake for a same-sex wedding regardless of the sexual orientation of the customer. He subsequently refused the request from the mother of one of the partners. The undisputed factual record shows that Phillips would not make a cake celebrating a same-sex marriage for a heterosexual customer and that he was no unwilling to sell other products to a homosexual customer.

“In both cases, the effect on the customer was the same: bikers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases, the bakers refused service intending only to honor a personal conviction. … the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. … all bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as anyone else).”

Gorsuch notes that Colorado law allows that “businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be “offensive”.  The Commission ignored that and judged Mr. Phillips’ intentions in denying service were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” But, somehow, the intentions of bakers in the Jack case were not “inextricably linked”.  The Commission presumed Mr. Phillips habored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it didn’t presume the same intention toward the bakers’ conduct in the Jack’s case.

“The Commission cannot have it both ways. [It] cannot slide up and down the mens rea scale, picking a mental status standard that suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required … or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class.”

But no, the Commission appeared instead to condemn Mr. Phillips for “expressing just the kind of “irrational” or “offensive” message that the bakers in the Jack’s case refused to endorse.  You can agree with the Commission and consider Mr. Phillips’ beliefs to be irrational or offensive, or consider that he has misinterpreted the teachings of his faith. The Supreme Court has ruled same-sex marriage is a matter of constitutional right and various states have enacted laws that preclude discrimination on the basis of sextual orientation, but those bureaucratic judgments do not 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. … Just as it it is the proudest boast of our free exercise of jurisprudence that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive (Matal v Tam (2017); United States v Schwimmer (1929).”

Gorsuch goes on to say the Commission has tried to maneuver around its failure by claiming Jack asked for a cake with text while Craig and Mullins (the plaintives) sought a decorated cake and then has insisted that the Phillips’ case involved a wedding cake like any other, suggesting there’s no substantive difference between a wedding cake celebrating a heterosexual wedding versus a homosexual one. It’s all a means to deny the neutrality Jack Phillips was due under the law.

It’s irrational to argue that a cake with words conveys a message, but a cake without words does not. Wedding cakes are symbolic baked goods, signifying approval of a “specific system, idea (or) institution.” (West Virinia Bd of Ed v Barnette (1943). “That was precisely the approval Mr. Phillips intended to withhold in keeping with his religious faith.” In denying Mr. Phillips that choice while affording the bakers in Mr. Jack’s case the same choice, the Commission displayed a gross lack of neutrality. Gorsuch insists that the only reasonable course of action is both bakers to be treated the same. To some, all wedding cakes may appear indistinguishable, but to Mr. Phillips, that is not the case — his faith teaches him otherwise “and his religious beliefs are entitled to no less respectful treatment than the [other] bakers’ secular beliefs.”

Gorsuch further relies on the case of Smith, a Jehovah’s Witness who worked in a steel mill, accepting that the sheet steel he worked on might be used in munitions, but objecting to working directly on tanks. “The Court didn’t try to suggest that making steel is just making steel [or] that to offend his religion the steel needed to be of a particular kind or shape. Instead it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments … not a bureaucrat or judge ….”

Gorsuch confirmed that it is not appropriate for the US Supreme Court to tell Mr. Phillips that a wedding cake is just like any other without regard to the religious significance his faith may attach to it than it is for the Court to suggest that “for all persons sacramental break is just bread and a kippah is just a cap.”

That leaves only one way forward. The SCOTUS will reverse the judgment and hold the Commission’s order set aside. The Commission ought to think about this and use the SCOTUS reasoning in future cases to offer neutral reasons for their rulemaking. Gorsuch also stated that Phillips is entitled to judgment for the past six years facing unlawful civil charges.

Ouch! The State of Colorado may get hit in their pocketbook. And that might be what is necessary to make it clear that government cannot do these sorts of things to law-abiding citizens they happen to disagree with.

Part 4

It’s Not Freedom If You Can’t Exercise It, Pt 1   Leave a comment

I’m a writer. Well, if you read this blog, you know that. I write a lot of non-fiction and I’ve published several novels. Writing is what I do.

I don’t write “Christian” books, but I am a Christian who writes. My faith works its way into my writing whether I mean it to or not because my faith is a part of me on a deep fundamental level. It doesn’t just dictate my surface actions on Sundays, but all of my actions, even the unthinking nouns and conjunctions.

From the moment I heard about Jack Phillips, I understood what he was going through. He was asked by a gay couple to make a custom wedding cake. Phillips explained that he would gladly make them cupcakes or cookies, but his faith teaches him that marriage is between a man and a woman and he could not participate in their wedding by making a cake that celebrated what the Bible teaches is sin.

I used to provide wedding photography as a ministry. If you couldn’t afford it or it involved hiking up a middling-sized Alaska mountain, I was up for it. People usually just reimbursed me for the film, processing, and printing. I stopped not long after I did a friend’s rock-climbing birthday. My friend is a lesbian and I had no problem celebrating her birthday. But she showed those photos to another lesbian we worked with and that woman asked me if I’d do her wedding. Fortunately, the wedding was in Hawaii so I could plead the cost. When I asked a lawyer about it, he said “You’re playing with fire. The day will come when someone is going to require you to violate your beliefs … do it for free … and take you to court if you refuse.” I let it be known that I was too busy with my writing to do photography for anyone not an official member of my church. True, but not so much that I wouldn’t have found the time for someone who needed it.

It is impossible to take pictures at a wedding or bake the cake and not be seen by others as approving that wedding. And whether you like it or not, the Bible is clear that homosexual activity is not something Christians can participate in. 1 Corinthians tells us to “Flee sexual immorality”, not put a nice set of clothes and attend a celebration to sanctify it.

Related imageThe jury is still out. Photography might be considered a passive recording of the event rather than an artistic expression. When I heard Phillips argument before the Supreme Court, I thought seriously about what would I do if someone came along and forced me to write something I truly knew would violate my beliefs.

Because I am both a non-fiction and fictional writer, I am somewhat like Jack Phllips. Sometimes I’m creating generic content for the masses and sometimes I creating a highly artistic enterprise. I would never say gay people can’t or shouldn’t buy my books. I suspect gay people have read my newspaper and magazine articles and blog posts. But what if one of my lesbian acquaintances came to me and wanted to hire me to write a narrative for her wedding? About 30 years ago, I actually did that for a couple who asked me to. I haven’t done it since, but I haven’t advertised that I would do that sort of thing. So, what would I do?

I wouldn’t decline the Christian couple who asked. I might not decline the non-Christian couple, although they might not like what I write. I would be very circumspect about doing that sort of service for a Christian couple where one or more of them were divorced from a prior spouse. It would depend on the circumstances. I would deny a Christian marrying a non-Christian because I think that is a Scriptural example of sexual immorality. And, I would decline a homosexual couple for the same reason. I should go see if my legal insurance is paid up. I just might need it.

The Supreme Court of the United States ruled this week that the Colorado Human Rights Commission discriminating against Jack Phillips because it was blatantly hostile to his faith, considered it be “despicable” and “merely rhetorical and [sic] insincere”, comparing the invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. Such a sentiment “is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of … a law that protects discrimination on the basis of religion as well as sexual orientation.”  Because no subsequent attempt was made to disavow those statements, Justice Kennedy concluded that “the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commissioner’s adjudication of Phillips’ case.”

Kennedy also noted that the Civil Rights Division had considered the refusal of other bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text and “found that the baker acted lawfully in refusing service.” The treatment of the conscience-based refusals in these other three cases with the Commission’s treatment of Phillips’ object was built on a presupposition that any message on the wedding cake would be attributed to the customers rather than the baker, but the Division never actually addressed that issue in its findings. One of the salient points for the Colorado Commission was that the bakeries were willing to sell other items to the customers, but then they dismissed as irrelevant Phillips’ willingness to sell “birthday cakes, shower cakes, cookies and brownies” to gay and lesbian couples. The Commission had treated the other bakers’ conscience-based objects as legitimate, but treated his as illegitimate, thus judging the validity of his religious beliefs themselves … deeming his beliefs to be offensive.

“The Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution ‘commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures'” (citing Church of Lukumi Babalu Aye).

Kennedy, writing the majority opinion found the Commission’s hostility to Phillips’ beliefs “inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

The SCOTUS left open the door for “cases of other circumstances” to further elaborate these arguments in the courts, reminding those future courts that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Contrary to popular media depiction, this was not a “narrow” decision. When fewer than a third of the justices dissented from the majority opening, it isn’t a narrow decision. 7 to 2 is practically a repudiation … especially when you consider that Elena Kagan — not exactly a conservative or constructionist juror — concurred with the majority.

 

More on that in my next post

Part 2

Lyndell Williams

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