Tuesday, March 4, 2014

Our fabulous solution

Ilya Shapiro at Forbes tells why he supports "marriage equality" and Arizona's Religious Liberty Bill, with my comments.

Even though I’m for marriage equality—see my Supreme Court briefs in the Prop 8 and DOMA cases, and this week I’ll be filing a brief supporting the challenge to the marriage laws of Oklahoma and Utah—I had no problem with Arizona’s SB 1062 for at least nine reasons: 
1. Unlike the failed legislation in Kansas and elsewhere, which truly was anti-gay, bills like Arizona’s merely provide a (non-absolute) right to assert a religious objection to generally applicable law, with courts being the ultimate arbiters of how to reconcile competing values.
Shapiro misunderstands the objections to the Arizona law. The objections aren't based on reason or evidence or law. The objections are based on hatred of Christianity.

2. SB 1062 did nothing more than align state law with the federalReligious Freedom Restoration Act (RFRA, which passed the House unanimously and the Senate 97-3, and was signed by President Clinton in 1993). No government action can “substantially burden” religious exercise unless the government uses “the least restrictive means” to further a “compelling interest.” Understandably, this right includes being able to assert a religious objection as a defense in a lawsuit that invokes state law as the basis for a claim (whether that be an antidiscrimination law or any other kind)—but again, a judge gets to decide whether that objection should be accommodated or overruled based on the standards I just described.
The actual content of the bill was never under discussion. The problem was that the bill interfered with the homosexual agenda, which is not gay marriage (people who have sex with hundreds/thousands of strangers in men's rooms don't give a shit about marriage). The homosexual agenda is the elimination of Christian praxis.

3. Such laws don’t mean that people can “do whatever they want”—laws against murder would still trump religious human sacrifice—but it prevents the government from forcing people to violate their religion if that can at all be avoided. Moreover, there’s no mention of sexual orientation (or any other class or category), unlike the Kansas bill, which specifically referenced and defined marriage.
Shapiro insists, bizarrely, on using reason and evidence to analyze the bill and the opposition to it. That's like trying to understand Kristallnacht by applying modal logic. A mismatch.

4. Why should people be forced to engage in activity that violates their religious beliefs? The prototypical scenario that SB 1062 was meant to prevent is the case of the New Mexico wedding photographer who was fined for declining to work a same-sex commitment ceremony. This photographer doesn’t refuse service to gay clients, but couldn’t participate in the celebration of a gay wedding. (The Supreme Court will decide later this month whether to hearthe case.) There’s also the Oregon bakery that closed rather than having to provide cakes for same-sex ceremonies. And the Washington florist who was sued by a long-time customer, and other similar examples.

People "should" be forced to engage in activity that violates their religious belief if the intent is to exterminate praxis based on their belief.

5. This isn’t the Jim Crow South. There are plenty of wedding photographers—over 100 in Albuquerque alone—and bakeries who would be willing to do business regardless of sexual orientation and no state is enforcing segregation laws (or has police officers moonlighting as Klansmen).

Jim Crow was the use of legal force to regulate private business interactions in order to exclude a disfavored segment of society from the public square. Just like what the gaystapo and their enablers are doing to Christians.

6. It may be a different case if there’s only one photographer for hundreds of miles—let alone one restaurant or hotel—but I wonder how many gay weddings happen in such isolated hamlets. And anyway, that extreme hypothetical shouldn’t be used as the basis for establishing general principle. As they say, hard cases make bad law.

But hard cases make good persecution, which is what is really going on here.

7. While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how—on religious or any other grounds. Gay photographers and bakers shouldn’t be forced to work Southern Baptist celebrations, Jews shouldn’t be forced to work Nazi rallies, environmentalists shouldn’t be forced to work job fairs in logging communities, and pacifists shouldn’t be forced to work NRA conventions.
Don't worry, Ilya. Gay photographers, Jewish businessmen, environmentalists, and pacifists are in no danger whatsoever of being forced to do anything they don't believe in. This in only about Christians. It will never be applied to anyone else.

8. Laws like SB 1062 help avoid manufactured controversies and preempt the involvement of lawyers where common sense and decency fear to tread. If somebody doesn’t want to serve you—or refuses to serve others on a basis you can’t stomach—take your custom elsewhere and encourage others to do the same. I bet plenty of Arizona businesses would see more customers if they advertised that they welcomed the LGBT community.

"Common sense"? "Decency"? What's that got to do with the LGBT agenda? You're kidding, right, Mr. Shapiro?

9. While Gov. Jan Brewer’s veto may have thrown cold water on this debate, the conflict between government mandates and civil rights (whether religious liberty, freedom of association, or anything else) will not go away. The way that the media maliciously misdescribed SB 1062 and that national politicians turned tail rather than defend inconvenient concepts may have made signing the bill politically hard, but the underlying policy principles are sound.
 The conflict won't go away. It will get much worse. This is still the beginning.

Let’s hope that the cases like those I described above—people who have long served gay clients but who don’t want to work same-sex ceremonies—don’t happen in Arizona. If they do, this debate will flare up again, in Phoenix and nationally. 
In the meantime, I suggest that legislatures that want to protect liberty for all pursue these mini-RFRAs—patterned on the federal one that was designed by those right-wing zealots Chuck Schumer and Ted Kennedy—but only in conjunction with the extension of state marriage law to gay couples. 
Tolerance, civility, and equal rights in a pluralistic society are all two-way streets.

Indeed tolerance, civility and equal rights are two way streets. That has nothing to do with America in 2014, because we are no longer a pluralistic society. The secularists have won, and we will increasingly reap the harvest of functional atheist crony capitalist (which is the same as socialist) governance, with a homosexual flair.

Christianity in America will face its final solution, or, should we say, its fabulous solution.   


  1. Welcome to episode 142 of Gaypocalipse watch.


  2. Mr Egnor, if you'd like to truly understand why you lost this one, and why the fallback position is equally untenable, have a read of this.


    Seriously: we're not coming to get you. We have no interest in storming your churches. We don't need to - the intolerance and just plain silliness of your position is driving people away in droves.

    We are happy to leave you alone, and to be left alone. If you think that a gay guy's mom going into a cake shop to buy a cake is 'a provocative action', then ... well, something's gone wrong with your logic at some point.

    If you want to strengthen your position, try to understand ours, don't just repeat yours. It was by examining the position of the right wing theocrats that we were able to dismantle it.

    You want freedoms the rest of us don't have. You want to decide which laws apply to you. No, sorry, that's not how American society works.

    You can repeat failure, or you can attempt to learn from failure. The recent history of the extremist right is that they'd rather sit in a circle and tell each other lies than engage with the other side of the debate. Suits me just fine.

  3. The Russians are saying that the non-ethnic Russians in Ukraine are pagan fascists that threaten to attack churches in eastern Ukraine. Sound familiar? It should, it’s the same sort of propaganda that Egnor spreads every day. Last month the Ukrainian Orthodox Church gave a homily in support of the riot police, urging them to be diligent in their duties and not side with protesters, before sprinkling them and their billy-clubs with holy water. It’s no wonder that conservatives seem to have a fan-boy crush on Putin.


    1. "It’s no wonder that conservatives seem to have a fan-boy crush on Putin."

      The conservative Christians who equate all atheists with the Stalinist suppression of the Church never stop to ask *why* when the revolution comes, the priests always end up being lined up against the wall. The Church in Russia, as in France, was an arm of government oppression. Fat, rich landowners who did all they could to crush the poor. Where did the Catholic church stand where fascism was concerned? With a literal handful of exceptions, in Spain, Italy and German, it was 'right next to the dictator. The new Pope supported the junta in his native Argentina. Ex-Benedict was a literal card carrying Nazi. John Paul II's 'anti communism' meant his allies in Poland were the far right. Coincidence? No, of course not. Just as it's not a coincidence that the Catholic priesthood, Mormons and evangelicals find themselves perfectly aligned with the Tea Party wing of the Republican Party (no wonder the Republicans are flying in circles when they only have a right wing and an extreme right wing).

      To be fair, America's just about the only place where the Church isn't a huge, parasitical absentee landlord. But that, of course, is thanks to the separation of church and state.

      And, of course, as the JJ Myers case demonstrates, those complicit in child abuse and financial fraud can retire to vast palaces even as they claim poverty.

      Whenever I've asked Catholics if it bothers them just how vile the priesthood is, they've accepted the premise of the question and said that it's proof God's protecting the Church - how else could such something so poorly-run by such crooks have endured for so long? It's not an argument I find persuasive.

  4. [Of course, in reality, Christians have nothing to fear from the "homosexual agenda". Nobody will force any churches to conduct gay weddings.]


  5. Let me know when they have succeeded in forcing the church. I think it's ridiculous they even tried.

  6. What's ridiculous about it? It's the logical next step for the cake-Nazis.

    Why should Christians be forced by law to bake wedding cakes for gays, and not forced to host the weddings?

    You aren't a homophobe, are you, troy?

  7. "Hmm..."

    It's a case from the UK. The Church of England is the established Church. Its archibishops sit in the government. And there are Britons who think that, as it's the official state religion, they shouldn't be allowed to discriminate.

    Which part of that, even a little bit, applies to the US?

    Once again, your case is a really, really flimsy one. *These* are your best shots?

  8. You don't allow Christians to discriminate with wedding cakes in the US, and they aren't part of an official state religion.

    If you'll go after private citizens, why won't you go after private churches?

    And of course you could simply make tax-exemption dependent on non-discrimination (Bob Jones U is the precedent). You'll tax the shit out of churches that don't do gay nuptials.

    Of course churches that are taxed as businesses should be subject to laws appropriate to businesses, and the fictitious church-state wall should come down, but it won't, because this has nothing to do with reason or law.

    This is just hate.

  9. Egnor,

    Commercial bakers and churches aren't private. They're public entities. Anyone can offer to purchase a baked product at the price demanded by the baker. Anyone can enter a church in order to take part in the religious service (in fact, they're encouraged).

    If there are 'private churches', I'm thinking of starting up one of my own (with just one member of the congregation) so I can get tax-free status.

  10. As WW11 started the French told Churchill the germans had won the war.
    He said NOPE. not even close.
    Homosexulaity has been held in contempt and derision and rejection because it attacked normal sexual identity. men were repulsed by gayism and women by gayism.
    nothing to do with christianity or secularism.
    its not like premarital sex or common law marriage and so on.
    People doing those things are rejecting Christian doctrine.
    The homosexual thing however is about identity. Christian doctrines just ALSO oppose it but are not the origin of its rejection.
    The people easily can agree that gayism is wrong and not to be treated as normal WHILE still respecting rights and kindness and personel acceptance towards gays.
    Its wrong to fight THE agenda with Christianity. nothing to do with it.
    Its about being real men and real women like our ancestors .
    its about moral right and wrong.
    its about a great discussion and national vote.
    No more courts deciding right and wrong on this.
    They blitzkrieg the good guys but just setlle down to a war.
    The people easily can be persuaded that its should be a private matter and not a public moral acceptance by the nation as the bad guys want.
    Conservative America and anyone needs better leaders and lawyers.
    No reason to lose ground in these things.
    The vote in California a few years ago settled nothing and votes today settle nothing.
    Its slippery sloppery opining by the people. not deep. The bad guys know this better then the good guys.
    Please out slogan MARRIAGE EQUALITY. give a contest for a counter slogan. Come on Yanks or we Canadians are moving away!

    1. Robert,

      What do you have against apostrophes? 'It is' abbreviated as "it's" not 'its', which is a possessive adjective.

  11. "And of course you could simply make tax-exemption dependent on non-discrimination (Bob Jones U is the precedent). You'll tax the shit out of churches that don't do gay nuptials."

    There's a distinction to be made between religious and non-religious services. The US government has almost always been incredibly wary of interfering with long-standing religious practice, even when they are cruel, weird or insanitary (as in some Jewish circumcision rituals).

    Where I imagine the hammer will come down is if Catholic hospitals discriminate against gay couples, or soup kitchens do, or something like that. In that case, the hospital is operating in a market environment (and receiving vast amounts of government money). There are currently no examples of that, and I suspect when they happen they will be examples of one local administrator letting their prejudice get the better of them, not hospital policy, and will be swiftly resolved.

    The Bob Jones university case wasn't about storming churches and forcing priests to conduct black masses. It was that the university got a lot of public money directly, a lot of tax breaks and that it rigidly enforced a code against interracial dating on campus. *UNTIL 2008*.

    Do you believe that, in 2008, it was acceptable for a business or institution to enforce rules barring white folks and black folks from holding hands? And do you believe that state and local government - taxpayers - should be giving them millions of dollars a year and say nothing about that?

  12. "Jim Crow was the use of legal force to regulate private business interactions in order to exclude a disfavored segment of society from the public square. Just like what the gaystapo and their enablers are doing to Christians."

    Yes, the leftists are using "gay" mirage as one more of their tools for driving Christianity out of the public square (so as to more perfectly dominate it, and society, themselves).

    At the same time, it is a very serious mistake to allow this issue to cast as being about "freedom of religion" as the means to counter the leftist imperialists on this, for the actual issue is an even more fundamental human right than freedom of religion: the actual issue is "freedom of association".

    With their "Jim Crow" laws, the Democrats violated the basic human rights of everyone within certain US jurisdictions, specifically the right of "freedom of association", by using government force-unto-death to compel supposedly free citizens to interact with other supposedly free citizens in certain ways, ways which many (if not most) of them wouldn't willingly have chosen (else, there'd have been no need for the use of compulsion), the purpose of which was to put/keep a certain class of supposedly free citizens, namely blacks, "in their place".

    In their overturning of the Democrats' "Jim Crow" laws, the Republicans violated the basic human rights of everyone within all US jurisdictions, specifically the right of "freedom of association", by using government force-unto-death to compel supposedly free citizens to interact with other supposedly free citizens in certain ways, ways which some of them wouldn't willingly have chosen, the purpose of which was to put/keep a certain class of supposedly free citizens, namely Southern whites, "in their place".

    The point is, the Republicans didn't simply repeal "Jim Crow", stopping the violation of the human rights of US citizens in general ... oh, no! those fools had to turn him on his head, so as to violate the human rights of "the bad guys" ... and thereby put in place a tool that the leftists (ironically, mostly Democrats, again) would eventually use to again violate the basic human rights of all Americans.

  13. Llion
    I'm Canadian .
    I understand Jim crow laws were legal. the southern people believed the south belonged to them and so the Africans could have basic rights but didn't deserve Southern industry and wealth.
    Thats not a immoral decision. its fair and square in dealing with a immigrant people.
    however it was the contract that all citizens of america own america even if immigrant. the immigrant won title to what his people did not create.
    In fact today Jim crow laws are called affirmative action or quotas or common ethnic/sex preferential hiring etc.
    America is all Jim cRow today but to the loss of true Americans and men.
    identity determines who deserves what in America a great deal and more to come unless stopped.
    Same in Canada here but we never were that free or heartfelt believers in rights of the citizen. We were taught by America like everyone else.

    Homosexuality however is a rejected thing by many and its their demand and right not to have the state impose its moral dictate for us to cooperate in a expressly gay thing.