When the word “right” disguises a demand

12 Tuesday Jul 2022

Posted by memoirandremains in law, natural law

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An opinion piece in the Los Angeles Times makes the argument that public restrooms are a “human right”: “However, like food, water and shelter, access to safe sanitation is a fundamental human right.”

That is interesting language. I agree that access to restrooms is extraordinarily useful in a society that requires a great deal of constant movement, often far from one’s home or place of work. I agree that developing and maintaining such facilities makes good policy sense at the level of government, in that it creates a broadly useful public good, like roads and fire departments. The economic interest in merely maintaining bathrooms at private expense seems limited.

(There is of course the fact that the government seems incapable of even maintaining the sidewalks in a safe manner. And the public transportation system has become a mobile hotel for those otherwise “unhoused.” Creating small, enclosed structures would likely merely create a new avenue for danger.)

My question concerns not the strength of the policy argument, but the phrasing of such a policy as a right? To prove the point, the writer cites to a UN document which calls sanitation a “right”. It is a public good. It is good for human beings. It makes life safer and more pleasant. But how is it a “right?”

The word “right” seems to mean a policy position which we will assert on the basis of our rationality which we think only the ignorant, bigoted, or otherwise vile would contest. While it uses the language of “rights” such as a “life, liberty, and the pursuit of happiness”, it refers to something far different than that asserted the signers of the declaration of independence. A review of the thought of the founders, particularly as it relates to English law and political theory can be found here.

A further consider behind the limitations on government can be found in Lutheran political and legal theory which imposed limits on the authority of the state over the person:

“Finally, the Lutheran jurists found both in Scripture and in conscience a general right of resistance to tyrannical rule. Conscience was the seat of both civil obedience and civil disobedience. When positive law contradicts natural law, the conscientious Lutheran Christian is torn between his duty to obey the divinely ordained “powers that be” and his duty to obey his own divinely ordained sense of justice. A contemporary.” Harold J. Berman. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Kindle Locations 1595-1597). Kindle Edition.

This understanding of right is a limitation of the government over the individual. It also derives from understanding of God imposing a pre-political order.

The use of the word “right” in the UN Declaration on “rights” and the “right” to a public restroom is a complete inversion of the concept of “right.” First, rather than a freedom from government control, it is a power to make a demand upon the public to receive something with direct cost to me. I have a “right” to health care; which means I have a power force someone else to pay my medical bills. The “right” to a restroom is the power to compel others to pay for the construction and maintenance of a facility.

Second, the power does not derive from a pre-political source. Rather it is a matter of positive law: it is a demand made by a constituency which is then enacted as law by a government.

Third, at the stage of this opinion piece, the word “right” actually means a demand which I am making upon you: It is rhetorically structured using the older and quite foreign language of “right” as a means to make disagreement impossible. The older use of “right” by definition is something which cannot be contradicted (it being rooted in nature or nature’s God, at the very least).

In short, this contemporary use of the word “right” is a strategy to make use of the evocation of the older version of “right” while making a demand upon another to provide some good or service.

Note, this does not mean a particular good or service may be appropriately provided at public expense, such traffic signals. But it is far more honest to argue for the public benefit by means of a cost benefit (or other appropriate argument), than to say I have. “right to traffic signals”, or a “right to storm drains,” or any other public good.

(There are other uses of the word “right”. This is not meant to be an exhaustive discussion of the ways in which the word “right” is used in contemporary discourse.)

A Short Summary of the Majority Opinion in Dobbs

24 Friday Jun 2022

Posted by memoirandremains in law

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abortion, Dobbs, law, politics

I have tried to track the Dobbs decision, laying out the structure of the argument. I did omit the final section of the opinion where the majority opinion responded to certain issues in the concurrence and dissent. (I got tired) This is not a critique of the decision, just an attempt to track the argument as it stands. The majority opinion with appendix is 117 pages long.

JUSTICE ALITO delivered the opinion of the Court.

I. INTRODUCTION

A. Social/Political Setting for the Decision:

“Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed.”

B. Legal Setting for this Decision:

1. Roe in context: “For the first 185 years after the adoption of the Constitution, each State was permitted to address this issue in accordance with the views of its citizens. Then, in 1973, this Court decided Roe v. Wade, 410 U. S. 113.”

A. Summary of Roe:

“Even though the Constitution makes no mention of abortion, the Court held that it confers a broad right to obtain one. It did not claim that American law or the common law had ever recognized such a right, and its survey of history ranged from the constitutionally irrelevant (e.g., its discussion of abortion in an-tiquity) to the plainly incorrect (e.g., its assertion that abortion was probably never a crime under the common law). After cataloging a wealth of other information having no bearing on the meaning of the Constitution, the opinion concluded with a numbered set of rules much like those that might be found in a statute enacted by a legislature.”

1. Note: This a summary of the basic argument which will follow.

a. First, Roe was wrong because Roe “found” a right which does not exist on the face of the Constitution. This is agreed by all: there is no express right to abortion in the Constitution.

Second, Roe was wrong to find an implied right. Implied rights are generally rights which existed previously in the history of American or English Common Law (the American Constitution being written in the context of English Common.” Reviewing the evidence for an implied right will take up much of the opinion.

B. Summary of the Holding and Subsequent History of Roe

1. Roe set out three chronological time periods for regulation of abortion. This three time-periods system will be set aside in Casey around 20 years later.

2. Roe was an exercise of legislative power in the guise of judicial interpretation (this is not quite how the argument is made but it seems to be the underlying thinking of the opinion) “Justice Byron White aptly put it in his dissent, the decision represented the “exercise of raw judicial power,” 410 U. S., at 222, and it sparked a national controversy that has embittered our political culture for a half century.”

C. Another Case Brings Up Roe

1. As if proof that Casey did not create the ease on political conflict that the drafters wished, we have this Mississippi law.

2. On one side, we are asked to overturn Roe.

3. On the other side, we are asked to reaffirm Roe & Case.

D. Holding

There are two parts to a decision: a “holding” and “dicta.” Holding is the ruling: You win or lose. Dicta is the reasoning which leads to the decision.

1. “We hold that Roe and Casey must be overruled.” Since Roe & Casey are overturned, the Mississippi law does not violate the constitution.

2. Summary of the rationale. The court explains that a “right” must be either explicit in the text of the constitution or implicit in the history of law in which the Constitution was written:

“The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s his- tory and tradition” and “implicit in the concept of ordered liberty.” Washington v. Glucksberg, 521 U. S. 702, 721 (1997) (internal quotation marks omitted).”

“The right to abortion does not fall within this category. Until the latter part of the 20th century, such a right was entirely unknown in American law. Indeed, when the Fourteenth Amendment was adopted, three quarters of the States made abortion a crime at all stages of pregnancy.”

3. Note on “implicit” rights.

An obvious question would be, what does the history matter if it is not expressly written down in the text of the law? When something is a given in a particular historical setting, there is no need to make any explicit statement concerning it: It is something everyone knows. How many descriptions have seen written out on to turn on a television, or how to dress for a baseball game. But if you were to be invited for dinner or a party at the house of someone whom you had never met, you would ask for explicit directions on how to dress.

The law addresses things which are unclear. But if the concept is well-known, there is no need to be explicit.

The 14^th Amendment explains that no one may be deprive of their life, liberty, or property “without due process of law.” Due process refers to the sort of procedures used to find someone guilty of a crime (for instance). The drafters did not need to explain, you have to have a judge when you have a trial. Everyone “knew” due process at least includes a judge. Use of a judge is implied in “due process.”

E. But Stare Decisis

There is a second question for the Court. Maybe Roe & Casey have some problems, but when the Court makes a decision, the decision should stand and control future decisions. If it is decided, it is decided. This is generally a good rule; no one wants the law to change helter-skelter. We need regularity to be able to lead our lives and conduct business.

1. The question of whether the doctrine of stare decisis should prevent overturning Roe and Casey will occupy a significant portion of the decision. But as the Court summarizes here, 5 justices (Justice Roberts agreed that the Mississippi law was constitutional; but he said that we don’t need to overturn Roe to upload this law; and so he agreed with the majority that the law was constitutional; he disagreed about overturning Roe).

2. “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” Notice the two arguments: (a) Roe used bad logic; (b) Roe & Casey have caused political conflict.

II. SUMMARY

A. Sets out the law, the legislative findings, and the parties.

B. The issue, the question the Court will decide:

“We granted certiorari, 593 U. S. ___ (2021), to resolve the question whether “all previability prohibitions on elective abortions are unconstitutional,” Pet. for Cert. i. Petitioners’ primary defense of the Mississippi Gestational Age Act is that Roe and Casey were wrongly decided and that “the Act is constitutional because it satisfies rational-basis re- view.” Brief for Petitioners 49. Respondents answer that allowing Mississippi to ban pre-viability abortions “would be no different than overruling Casey and Roe entirely.” Brief for Respondents 43. They tell us that “no half- measures” are available: We must either reaffirm or overrule Roe and Casey. Brief for Respondents 50.”

C. Summary of the Court’s analysis:

1. “First, we explain the standard that our cases have used in determining whether the Fourteenth Amendment’s reference to “liberty” protects a particular right.”

2. “Second, we examine whether the right at issue in this case is rooted in our Nation’s history and tradition and whether it is an essential component of what we have described as “ordered liberty.””

3. “Finally, we consider whether a right to obtain an abortion is part of a broader entrenched right that is supported by other precedents.”

4. Why are you relying upon an analysis of whether abortion is an “implicit right”?

“Constitutional analysis must begin with “the language of the instrument,” Gibbons v. Ogden, 9 Wheat. 1, 186–189 (1824), which offers a “fixed standard” for ascertaining what our founding document means, 1 J. Story, Commentaries on the Constitution of the United States §399, p. 383 (1833). The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text.”

5. Summary of the sort of arguments which have been used to find an “implicit right”.

There have been three basic places where parties have argued that the implicit right could be found, based upon certain provisions of the constitution:

“The Court’s discussion left open at least three ways in which some combination of these provisions could protect the abortion right.

“[1] One possibility was that the right was “founded . . . in the Ninth Amendment’s reservation of rights to the people.” Id., at 153.

“[2] Another was that the right was rooted in the First, Fourth, or Fifth Amendment, or in some combination of those provisions, and that this right had been “incorporated” into the Due Process Clause of the Fourteenth Amendment just as many other Bill of Rights provisions had by then been incorporated. Ibid; see also McDonald v. Chicago, 561 U. S. 742, 763–766 (2010) (majority opinion) (discussing incorporation).

“[3] And a third path was that the First, Fourth, and Fifth Amendments played no role and that the right was simply a component of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause. Roe, 410 U. S., at 153. Roe expressed the “feel[ing]” that the Fourteenth Amendment was the provision that did the work, but its message seemed to be that the abortion right could be found somewhere in the Constitution and that specifying its exact location was not of par- amount importance.16 The Casey Court did not defend this unfocused analysis and instead grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause.”

6. A new argument: equal protection

Since only women can have abortions, abortion laws discriminate against women on the basis of their sex.

III. ANALYSIS OF THE HISTORY

A. At this point, the Court undertakes an extensive analysis of the law prior to Roe respecting abortion. The Court does not find good evidence to support a conclusion that abortion was a “right” “implicit” in the law and the expectations of the law. This forms a great deal of the opinion and is supported by an “appendix” which catalogues abortion laws pre-Roe.

B. Conclusion: The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions. On the contrary, an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973. The Court in Roe could have said of abortion exactly what Glucksberg said of assisted suicide: “Attitudes toward [abortion] have changed since Bracton, but our laws have consistently condemned, and continue to prohibit, [that practice].” 521 U. S., at 719.”

C. But what about the contrary evidence, “Respondents and their amici have no persuasive answer to this historical evidence.” [discussion follows]

D. What about the evidence in Roe?

1. “Roe relied largely on two articles by a pro-abortion advocate who claimed that Coke had intentionally misstated the common law because of his strong anti-abortion views.37 These articles have been discredited,38 and it has come to light that even members of Jane Roe’s legal team did not regard them as serious scholarship. An internal memorandum characterized this author’s work as donning “the guise of impartial scholar- ship while advancing the proper ideological goals.”3 Con- tinued reliance on such scholarship is unsupportable.”

2. The Dissent.

Later on in the decisions, the Court makes the following note about the dissent:

“The dissent is very candid that it cannot show that a constitutional right to abortion has any foundation, let alone a “‘deeply rooted’” one, “‘in this Nation’s history and tradition.’ ” Glucksberg, 521 U. S., at 721; see post, at 12–14 (joint opinion of BREYER, SOTOMAYOR, and KAGAN, JJ.). The dissent does not identify any pre-Roe authority that supports such a right—no state constitutional provision or statute, no federal or state judicial precedent, not even a scholarly treatise. Compare post, at 12–14, n. 2, with su- pra, at 15–16, and n. 23. Nor does the dissent dispute the fact that abortion was illegal at common law at least after quickening; that the 19th century saw a trend toward crim- inalization of pre-quickening abortions; that by 1868, a su- permajority of States (at least 26 of 37) had enacted stat- utes criminalizing abortion at all stages of pregnancy; that by the late 1950s at least 46 States prohibited abortion “however and whenever performed” except if necessary to save “the life of the mother,” Roe, 410 U. S., at 139; and that when Roe was decided in 1973 similar statutes were still in effect in 30 States. Compare post, at 12–14, nn. 2–3, with supra, at 23–25, and nn. 33–34

“The dissent’s failure to engage with this long tradition is devastating to its position. We have held that the “established method of substantive-due-process analysis” requires that an unenumerated right be “‘deeply rooted in this Nation’s history and tradition’ ” before it can be recog- nized as a component of the “liberty” protected in the Due Process Clause. Glucksberg, 521 U. S., at 721; cf. Timbs, 586 U. S., at ___ (slip op., at 7). But despite the dissent’s professed fidelity to stare decisis, it fails to seriously engage with that important precedent—which it cannot possibly satisfy.”

E. The “Entrenched Right” Argument

“Instead of seriously pressing the argument that the abortion right itself has deep roots, supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right. Roe termed this a right to pri-vacy, 410 U. S., at 154, and Casey described it as the free- dom to make “intimate and personal choices” that are “central to personal dignity and autonomy,” 505 U. S., at 851. Casey elaborated: “At the heart of liberty is the right to de- fine one’s own concept of existence, of meaning, of the uni- verse, and of the mystery of human life.” Ibid.”

1. Essentially, Roe created a Right, but that Right is now so “entrenched” it should not be set aside.

2. The Court considers this issue whenin the context of “ordered liberty.”

This right is so important that to not continue to assert it would upset the structure of society.

“Ordered liberty sets limits and defines the boundary between competing interests. Roe and Casey each struck a particular balance between the interests of a woman who wants an abortion and the interests of what they termed “potential life.” Roe, 410 U. S., at 150 (emphasis deleted); Casey, 505 U. S., at 852. But the people of the various States may evaluate those interests differently. In some States, voters may believe that the abortion right should be even more extensive than the right that Roe and Casey recognized. Voters in other States may wish to impose tight restrictions based on their belief that abortion destroys an “unborn human being.” Miss. Code Ann. §41–41–191(4)(b). Our Nation’s historical understanding of ordered liberty does not prevent the people’s elected representatives from deciding how abortion should be regulated.”

3. Distinguishing other cases

This is an important aspect of the analysis. There are a handful of other cases involving implicit rights. One of the arguments against Roe has been that if you overrule Roe, states will make it illegal for people with different skin colors to marry. The Court rejects this argument as follows. Since it is an important part of the argument politically, here it is:

“Nor does the right to obtain an abortion have a sound basis in precedent. Casey relied on cases involving the right to marry a person of a different race, Loving v. Virginia, 388 U. S. 1 (1967); the right to marry while in prison, Turner v. Safley, 482 U. S. 78 (1987); the right to obtain contraceptives, Griswold v. Connecticut, 381 U. S. 479 (1965), Eisenstadt v. Baird, 405 U. S. 438 (1972), Carey v. Population Services Int’l, 431 U. S. 678 (1977); the right to reside with relatives, Moore v. East Cleveland, 431 U. S. 494 (1977); the right to make decisions about the education of one’s chil- dren, Pierce v. Society of Sisters, 268 U. S. 510 (1925), Meyer v. Nebraska, 262 U. S. 390 (1923); the right not to be steri- lized without consent, Skinner v. Oklahoma ex rel. William- son, 316 U. S. 535 (1942); and the right in certain circum- stances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar pro- cedures, Winston v. Lee, 470 U. S. 753 (1985), Washington v. Harper, 494 U. S. 210 (1990), Rochin v. California, 342 U. S. 165 (1952). Respondents and the Solicitor General also rely on post-Casey decisions like Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts), and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to marry a person of the same sex). See Brief for Re- spondents 18; Brief for United States 23–24.

“These attempts to justify abortion through appeals to a broader right to autonomy and to define one’s “concept of existence” prove too much. Casey, 505 U. S., at 851. Those criteria, at a high level of generality, could license funda- mental rights to illicit drug use, prostitution, and the like. See Compassion in Dying v. Washington, 85 F. 3d 1440, 1444 (CA9 1996) (O’Scannlain, J., dissenting from denial of rehearing en banc). None of these rights has any claim to being deeply rooted in history. Id., at 1440, 1445.

“What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abor- tion destroys what those decisions call “potential life” and what the law at issue in this case regards as the life of an “unborn human being.” See Roe, 410 U. S., at 159 (abortion is “inherently different”); Casey, 505 U. S., at 852 (abortion is “a unique act”). None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. They are therefore inapposite. They do not sup- port the right to obtain an abortion, and by the same token, our conclusion that the Constitution does not confer such a right does not undermine them in any way.

“In drawing this critical distinction between the abortion right and other rights, it is not necessary to dispute Casey’s claim (which we accept for the sake of argument) that “the specific practices of States at the time of the adoption of the Fourteenth Amendment” do not “mar[k] the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.” 505 U. S., at 848. Abortion is nothing new. It has been addressed by lawmakers for centuries, and the fundamental moral question that it poses is ageless.

“Defenders of Roe and Casey do not claim that any new scientific learning calls for a different answer to the under- lying moral question, but they do contend that changes in society require the recognition of a constitutional right to obtain an abortion. Without the availability of abortion, they maintain, people will be inhibited from exercising their freedom to choose the types of relationships they de- sire, and women will be unable to compete with men in the workplace and in other endeavors.”

The dissent attempts to obscure this failure by misrepre- senting our application of Glucksberg. The dissent suggests that we have focused only on “the legal status of abortion in the 19th century,” post, at 26, but our review of this Na- tion’s tradition extends well past that period. As explained, for more than a century after 1868—including “another half-century” after women gained the constitutional right to vote in 1920, see post, at 15; Amdt. 19—it was firmly es- tablished that laws prohibiting abortion like the Texas law at issue in Roe were permissible exercises of state regula- tory authority. And today, another half century later, more than half of the States have asked us to overrule Roe and Casey. The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.

IV. STARE DECISIS

This is a technical legal argument about when a previous Supreme Court decision may be overturned. This argument assumes that Roe was wrong or at least not well decided. Yet, since it has been law for 50 years, perhaps we should just let it go, because “fixing the mistake” will be worse than just permitting it to continue.

A. What is the good of Stare Decisis?

“We next consider whether the doctrine of stare decisis counsels continued acceptance of Roe and Casey. Stare de- cisis plays an important role in our case law, and we have explained that it serves many valuable ends. It protects the interests of those who have taken action in reliance on a past decision. See Casey, 505 U. S., at 856 (joint opinion); see also Payne v. Tennessee, 501 U. S. 808, 828 (1991). It “reduces incentives for challenging settled precedents, saving parties and courts the expense of endless relitigation.” Kimble, 576 U. S., at 455. It fosters “evenhanded” decisionmaking by requiring that like cases be decided in a like manner. Payne, 501 U. S., at 827. It “contributes to the actual and perceived integrity of the judicial process.” Ibid. And it restrains judicial hubris and reminds us to respect the judgment of those who have grappled with important questions in the past. “Precedent is a way of accumulating and passing down the learning of past generations, a font of established wisdom richer than what can be found in any single judge or panel of judges.” N. Gorsuch, A Republic, If You Can Keep It 217 (2019).”

B. It is not absolute:

“We have long recognized, however, that stare decisis is “not an inexorable command,” Pearson v. Callahan, 555 U. S. 223, 233 (2009) (internal quotation marks omitted), and it “is at its weakest when we interpret the Constitu- tion,” Agostini v. Felton, 521 U. S. 203, 235 (1997). It has been said that it is sometimes more important that an issue “ ‘be settled than that it be settled right.’ ” Kimble, 576 U. S., at 455 (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 406 (1932) (Brandeis, J., dissenting)). But when it comes to the interpretation of the Constitution— the “great charter of our liberties,” which was meant “to endure through a long lapse of ages,” Martin v. Hunter’s Les- see, 1 Wheat. 304, 326 (1816) (opinion for the Court by Story, J.)—we place a high value on having the matter “set- tled right.” In addition, when one of our constitutional de- cisions goes astray, the country is usually stuck with the bad decision unless we correct our own mistake. An erro- neous constitutional decision can be fixed by amending the Constitution, but our Constitution is notoriously hard to amend. See Art. V; Kimble, 576 U. S., at 456. Therefore, in appropriate circumstances we must be willing to reconsider and, if necessary, overrule constitutional decisions.”

C. Examples of good that was done in overturning bad decisions

This is important, because it is a response to the argument that the Court rarely if ever should overturn decisions. The response is sometimes our best work was overturning bad decisions:

“Some of our most important constitutional decisions have overruled prior precedents. We mention three. In Brown v. Board of Education, 347 U. S. 483 (1954), the Court re- pudiated the “separate but equal” doctrine, which had al- lowed States to maintain racially segregated schools and other facilities. Id., at 488 (internal quotation marks omit- ted). In so doing, the Court overruled the infamous decision in Plessy v. Ferguson, 163 U. S. 537 (1896), along with six other Supreme Court precedents that had applied the separate-but-equal rule. See Brown, 347 U. S., at 491. In West Coast Hotel Co. v. Parrish, 300 U. S. 379 (1937), the Court overruled Adkins v. Children’s Hospital of D. C., 261 U. S. 525 (1923), which had held that a law setting min- imum wages for women violated the “liberty” protected by the Fifth Amendment’s Due Process Clause. Id., at 545. West Coast Hotel signaled the demise of an entire line of important precedents that had protected an individual lib- erty right against state and federal health and welfare leg- islation. See Lochner v. New York, 198 U. S. 45 (1905) (holding invalid a law setting maximum working hours); Coppage v. Kansas, 236 U. S. 1 (1915) (holding invalid a law banning contracts forbidding employees to join a union); Jay Burns Baking Co. v. Bryan, 264 U. S. 504 (1924) (hold- ing invalid laws fixing the weight of loaves of bread).

“Finally, in West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), after the lapse of only three years, the Court overruled Minersville School Dist. v. Gobitis, 310 U. S. 586 (1940), and held that public school students could not be compelled to salute the flag in violation of their sincere be- liefs. Barnette stands out because nothing had changed during the intervening period other than the Court’s be- lated recognition that its earlier decision had been seriously wrong.”

Numerous other decisions are cited.

D. There are five reasons to overturn Roe/Casey:

1. “The nature of the Court’s error. An erroneous interpretation of the Constitution is always important, but some are more damaging than others.”

“Roe was also egregiously wrong and deeply damaging. For reasons already explained, Roe’s constitutional analysis was far outside the bounds of any reasonable interpretation of the various constitutional provisions to which it vaguely pointed.”

2. “The quality of the reasoning. Under our precedents, the quality of the reasoning in a prior case has an important bearing on whether it should be reconsidered. See Janus, 585 U. S., at ___ (slip op., at 38); Ramos, 590 U. S., at ___– ___ (opinion of KAVANAUGH, J.) (slip op., at 7–8). In Part II, supra, we explained why Roe was incorrectly decided, but that decision was more than just wrong. It stood on exceptionally weak grounds.”

An analysis of the weakness of Roe’s reasoning follows.

a. “The weaknesses in Roe’s reasoning are well-known. Without any grounding in the constitutional text, history, or precedent, it imposed on the entire country a detailed set of rules much like those that one might expect to find in a statute or regulation.”

b. Here the Court cites to Professor Tribe, an outstanding scholar of the left:

“Here is the Court’s entire explanation: “With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at vi- ability. This is so because the fetus then presumably has the capability of meaningful life outside the womb.” 410 U. S., at 163. As Professor Laurence Tribe has written, “[c]learly, this mistakes ‘a definition for a syllogism.’ ” Tribe 4 (quoting Ely 924).”

The implicit argument: even those who defend abortion think Roe is poorly reasoned.

c. “All in all, Roe’s reasoning was exceedingly weak, and ac- ademic commentators, including those who agreed with the decision as a matter of policy, were unsparing in their criticism.”

3. “Workability. Our precedents counsel that another important consideration in deciding whether a precedent should be overruled is whether the rule it imposes is work- able—that is, whether it can be understood and applied in a consistent and predictable manner. Montejo v. Louisiana, 556 U. S. 778, 792 (2009); Patterson v. McLean Credit Un- ion, 491 U. S. 164, 173 (1989); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U. S. 271, 283–284 (1988). Ca- sey’s “undue burden” test has scored poorly on the worka- bility scale. Problem begin with the very concept of an “undue bur- den.” As Justice Scalia noted in his Casey partial dissent, determining whether a burden is “due” or “undue” is “inher- ently standardless.” 505 U. S., at 992; see also June Medi- cal Services L. L. C. v. Russo, 591 U. S. ___, ___ (2020) (GORSUCH, J., dissenting) (slip op., at 17) (“[W]hether a bur- den is deemed undue depends heavily on which factors the judge considers and how much weight he accords each of them” (internal quotation marks and alterations omitted)).”

4. “Effect on other areas of law. Roe and Casey have led to the distortion of many important but unrelated legal doctrines, and that effect provides further support for overrul- ing those decisions. See Ramos, 590 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 8); Janus, 585 U. S., at ___ (slip op., at 34).” The linguistic efforts to support Roe have led the Court to engage in strained and wrong arguments which have poisoned other cases.

5. “Reliance interests. We last consider whether overruling Roe and Casey will upend substantial reliance interests.”

a. If I enter in a contract, I would like the assurance that the law will permit me to enforce the contract tomorrow.

b. But regular reliance does not take place here: you don’t go out to get pregnant so that you can an abortion. And if you do, you can make sure not to get pregnant in Mississippi.

6. The Counter: But overturning these decisions will mean that states will outlaw birth control. “Unable to show concrete reliance on Roe and Casey them- selves, the Solicitor General suggests that overruling those decisions would “threaten the Court’s precedents holding that the Due Process Clause protects other rights.” Brief for United States 26 (citing Obergefell, 576 U. S. 644; Law- rence, 539 U. S. 558; Griswold, 381 U. S. 479). That is not correct for reasons we have already discussed. As even the Casey plurality recognized, “[a]bortion is a unique act” be- cause it terminates “life or potential life.” 505 U. S., at 852; see also Roe, 410 U. S., at 159 (abortion is “inherently dif- ferent from marital intimacy,” “marriage,” or “procreation”). And to ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision con- cerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”

E. This will ruin the Court’s integrity.

“The argument was cast in different terms, but stated simply, it was essentially as follows. The American people’s belief in the rule of law would be shaken if they lost respect for this Court as an institution that decides important cases based on principle, not “social and political pressures.” 505 U. S., at 865. There is a special danger that the public will perceive a decision as having been made for unprincipled reasons when the Court overrules a controversial “water- shed” decision, such as Roe. 505 U. S., at 866–867. A deci- sion overruling Roe would be perceived as having been made “under fire” and as a “surrender to political pressure,” 505 U. S., at 867, and therefore the preservation of public approval of the Court weighs heavily in favor of retaining Roe, see 505 U. S., at 869.”

1. This is essentially a political not a legal argument. The political process needs Roe to stay in place.

2. Well, Casey and Roe certainly have not helped the political process: “Neither decision has ended debate over the issue of a constitutional right to obtain an abortion. Indeed, in this case, 26 States expressly ask us to overrule Roe and Casey and to return the issue of abortion to the people and their elected representatives. This Court’s inability to end de- bate on the issue should not have been surprising. This Court cannot bring about the permanent resolution of a rancorous national controversy simply by dictating a settlement and telling the people to move on.”

3. That’s not our job. “We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision. We can only do our job, which is to interpret the law, apply longstanding principles of stare decisis, and de- cide this case accordingly. “

V. HOLDING

“We therefore hold that the Constitution does not confer a right to abortion. Roe and Casey must be overruled, and the authority to regulate abortion must be returned to the people and their elected representatives.”

303 Creative LLC v Elenis

01 Wednesday Jun 2022

Posted by memoirandremains in law

≈ 3 Comments

Tags

303 Creative, Brief, first amendment, law

Currently pending before the Supreme Court is the issue of whether the government can compel a website designer to create “pure speech” on behalf of those persons who espouse issues on human sexuality which contradict the website designer’s religious beliefs. An essay in City Journal explains the matter:

On February 22, the Supreme Court agreed to hear 303 Creative LLC v. Elenis, a case involving a Christian website designer’s refusal, in the face of Colorado’s Anti-Discrimination Act (CADA), to create websites that celebrate same-sex weddings. In doing so, the Court has the opportunity to place in proper order two legal guarantees: protection against government-compelled speech and anti-discrimination on the basis of sexual orientation.

In the prior “public accommodations” cases, such as the Masterpiece Cake case, the First Amendment question was whether the creation of a cake or the arrangement of flowers or taking photographs was protected “speech” under the First Amendment (or whether the sale of the cake was “commerce”).

The 303 case presents a different issue. Here the court concluded the creation of a website was “pure speech”. Therefore, the question was whether the government could compel someone to speak (in this case on the issue of a gay marriage).

The issue accepted by the Supreme Court is:

“Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the free speech clause of the First Amendment.”

You can read the briefs which have been filed in this action, here:

303 Creative LLC v. Elenis

Below, you can read the brief which my office has filed (it has taken much of my time of late).

303 Creative v. Elenis Amicus Brief (3)Download

Do I Really Need to Concern Myself With the Law

21 Saturday Aug 2021

Posted by memoirandremains in Biblical Counseling, law

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Biblical Counseling, law

I am finishing up what will be a book on “intersection” of legal issues and pastoral counseling. One question I have received has been the extent to which government may seek to regulate biblical counseling, whether by state mandate or by private lawsuit (which is in effect a petition to the government to exercise its power in a particular instance). Below, is a draft Preface to answer that question.

Yes. If you do not, you will not be able to minister well to others. Some counselees will be involved in legal disputes, divorces, criminal proceedings; you will need to understand their circumstance to help them.

But you also need to concern yourself with the law because the culture is changing: And as the culture changes, so does the law. The relatively amicable relationship Christian ministry in general and Christian counseling in particular had with the culture and law is changing: quickly and fundamentally.

The first thing we need to understand about the law is that the law is an expression of culture. If we return a few decades in our history, homosexual conduct was a crime in the United States. In Bowers v. Hardwick, 478 U.S. 186 (1986), the United States Supreme Court upheld the constitutionality of a law prohibiting sodomy. Yet, less than 20 years later in Lawrence v. Texas, 539 U.S. 558 (2003), the same Court found such laws to be unconstitutional.

The words of the Constitution did not change between 1986 and 2003, but the culture did change. When we think about the law, we need to realize that the law is an expression of the culture. If the culture changes, the laws will change.

So, when we think about the law, we need to think about the law as it relates to the broader culture. We need to understand where the law stands today, but we also need to be prepared for the where the law will be tomorrow.

A detailed consideration of the culture and the legal system would be well-beyond the scope of this work. Yet, there are some things we must consider. In 2013, Albert Mohler wrote of “A Moral Revolution at Warp Speed.” (Albert Mohler, Jr., “A Moral Revolution at Warp Speed,” Albert Mohler, December 11, 2013, https://albertmohler.com/2013/12/11/a-moral-revolution-at-warp-speed-now-its-wedding-cakes.) That moral revolution has been moving steadily through the legislatures and courts.

As this book is being finalized, decisions in the federal courts and decisions in legislatures are finding that “erotic liberty” (to use Dr. Mohler’s phrase) is of more social value than First Amendment rights to speech or religion. I have spoken with some of the most well-informed attorneys as to First Amendment law who are dumbstruck at what has been said and done.

There are well-known cases of Christian wedding photographers who have asked to be exhibited from being coerced to participate in same-sex weddings. A wedding (as opposed to a bare marriage license) for a Christian is a religious rite which serious theological consequences. In the recent decision of 303 Creative LLC v. Elenis, et al, _____ F.3^rd _____ (10^th Cir. 2021) the appellate court found that the law which prohibited a Christian wedding photographer from refusing to photograph a same-sex wedding was a content-based restriction on speech and that compelled speech by the photographer.

Only in the most extraordinary circumstances have the courts permitted such laws to stand. Under the law, the most-vile racist speech and pornography is protected. But in this decision, the 10^th Circuit held that erotic liberty of same-sex couples was such remarkable importance that the state could compel the speech of a Christian to approve of the marriage, “we hold that CADA satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.”

Think for a moment. We allow “conscientious objectors” to avoid war – which can entail the very existence of the nation – to refuse on the ground of a religious objection. We cannot compel a Nazi to speak well of Jews. But the government can compel someone to approve same-sex marriage.

You may think, “Yes, but the government will not try to concern itself with what is done in a church.” In Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School (6th Cir. 2010) 597 F.3d 769, the appellate court found that an ordained minister had the right to make a complaint to the EEOC and the church which fired the plaintiff was not permitted to rely upon the “ministerial exception.” When the church appealed the decision, the United States government argued that the state had the power to determine whether there really was a proper basis to fire the minister. The Supreme Court overturned the Sixth Circuit, but the federal government was on the other side.

There are well-publicized instances of the state taking a child away from a parent who wished to protect their child from what is called “transition,” but is sterilization and amputation of healthy body-parts, the poor child believes the body to not be who they “really” are.

You may think, “Yes, but I am a biblical counselor in a church, not a photographer at wedding, I’m not making a hiring decision, I’m not a parent who has lost her child to sterilization.” If this begins to sound like Martin Niemöller’s famous lines, “First they came for the Communists …,” you should realize that they are not that-far from you.

Consider this: There are state laws which prohibit licensed therapists from counseling minors against same sex attraction and behavior.

As will be discussed below in chapter 2, the activity which you undertake in providing counsel is functionally identical to conduct of a licensed counselor. I want you to imagine that a high school student, the child of a family in the church is brought to you, unwillingly, by the parents of a child. The parents ask you to “fix” their child. You gently and patiently explain to child that the Scripture has very clear instructions on sexual behavior. You explain that a very strong desire to do something, even an inability to not understand how one could not desire to do a thing, does not make a thing right in the eyes of God. You sympathize with the difficulty this will be for them, but counsel against this sin.

This teenager, who already resents his parents, goes to the local “human rights” attorney, who then sues you for (1) practicing psychotherapy without a license, and (2) violating the fundamental policy of the state. You will be brought before a judge, who must be re-elected to maintain her pension, and a jury who belongs to the culture at large and which thinks you at best outdated. Your scriptural counsel will be called hate speech.

Wait, you will say, the government will not concern itself with what a pastor says to his congregation! This would ignore instances, such as the mayor of Houston (through an outside group) subpoenaing the texts of sermons of local pastors to look for “troublesome” language.

And so, you lose at the trial court. You then bring your case to the 10^th Circuit, say (who already believes Christians must be compelled to approve of same-sex marriage).

We need to understand where the law is today, and where the law will likely be tomorrow. There are many fine attorneys who have advocated on behalf of the freedom of religion. Some of those attorneys have contributed to this book. We know that God is sovereign.

However, we also know that God expects us to exercise wisdom. “The prudent sees danger and hides himself, but the simple go on and suffer for it.” (Prov. 22:3) This book is not meant to cause fear, but rather is a call for the exercise of wisdom. Since most biblical counselors will not have legal experience, we written this book to give what we have experience.

Analysis of the Decision in 303 Creative

11 Wednesday Aug 2021

Posted by memoirandremains in first amendment, law

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303 Creative, first amendment, Freedom of Conscience, Freedom of Religion, Freedom of Speech, law, politics, public accommodation, Religious Freedom, Speech

The decision of the 10^th Circuit in 303 Creative LLC, et al. v. Elenis, et al. is a remarkable decision for its rejection what should be undisputed constitutional principles. As Ed Whelan wrote in Bonkers Tenth Circuit Ruling Against Free Speech, “It is difficult to imagine a ruling more hostile to free speech.” The case involved a Christian web developer who said she was unwilling to make a webpage which celebrated a same-sex wedding.

This was not the case of someone who refused to serve a gay customer. The designer specifically stated that it was not the identity of the customer but the content of the message which was the issue: “303 Creative is a for-profit, graphic and website design company; Ms. Smith is its founder and sole member-owner. Appellants are willing to work with all people regardless of sexual orientation. Appellants are also generally willing to create graphics or websites for lesbian, gay, bisexual, or transgender (“LGBT”) customers. Ms. Smith sincerely believes, however, that same-sex marriage conflicts with God’s will.”

The court found that the creation of the website was “speech,” “Appellants’ creation of wedding websites is pure speech.” This is important because in cases such those involving a baker or a florist, there was an issue as to whether the work itself (decorating a cake, arranging flowers) constitutes speech for purposes of the First Amendment. Thus, the speech clause of the First Amendment was unquestionably in play.

Second, the court found that speech at issue also entailed the plaintiff’s religious convictions, “Ms. Smith holds a sincere religious belief that prevents her from creating websites that celebrate same-sex marriages.”

Free exercise of religion and freedom of speech are guaranteed in First Amendment. Having found speech and religion, it seems that the plaintiff should have easily prevailed. But here, the court found the government could compel speech (and also religious practice).

The First Amendment prohibits compelled speech. (United States v. United Foods, Inc., 533 U.S. 405, 410 (2001); see, Wooley v. Maynard 430 U.S. 705, 714-15, supra) The act of government compulsion as to speech is always demeaning and always wrong. (Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31 (2018) 138 S. Ct. 2448, 2464 (2018) [“When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette, supra, at 633, 63 S.Ct. 1178; see also Riley, supra, at 796–797, 108 S.Ct. 2667 (rejecting “deferential test” for compelled speech claims).”])

Since this case involves compelled speech, it seems she should have won, but she did not.

The court found that the law was a content-based restriction on speech, meaning that it prohibited certain speech based upon the content of that speech. With few very narrow exceptions (such as a true threats), content based restrictions are simply struck down.

And yet, the 303 court found the State of Colorado could compel Ms. Smith to publicly approve same sex marriage (or be barred from being a web-designer in the state), “We hold that CADA [the law at issue] satisfies strict scrutiny, and thus permissibly compels Appellants’ speech.” The decision also compels Ms. Smith to contradict her religious beliefs and participate in a religious rite if she wants to conduct any business in Colorado.

How did this happen? How could a court find that the government can compel speech, forbid other speech and compel religious practice as the cost of doing business in the State of Colorado?

First, Ms. Smith’s solo operation had to be designated as a “public accommodation.” The statute defines a public accommodation as a business which is open to the public, “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Such a definition runs contrary to the history of the meaning of the phrase “public accommodation.” Public accommodations entail public carriers (like a bus line), public accommodations (like a hotel on the interstate). The concept has a long history in American law and then English common law before that. And it is only recently that solo operators have become “public accommodations.”

But the court did more than turn her into a public accommodation, it actually turned her into a special sort of public accommodation: the monopoly, which by virtue of being a monopoly must be open to the public.

The nature of “public accommodations” and the way in which Ms. Smith became a monopoly will be discussed next.

An argument for freedom of conscience (1661) part 2 (with comments)

28 Wednesday Jul 2021

Posted by memoirandremains in law

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Coercion, Faith, Freedom of Conscience, law, Liberty, Quaker, Religious Freedom, Toleration

9. Because, to force, is inconsistent with the Belief of the Jews Conversion (and other false worshippers) which is prayed for by the Publick Teachers, and cannot be attained, if Persecution for Conscience be prosecuted.

Comment: The thrust of this argument seems to be as follows: You pray for actual conversion (such as prayer for the Jews to be converted). Yet, by forcing conscience you are not obtaining conversion (which is what you claim) but rather sin (which is what you should avoid). Thus, your conduct contradicts your prayers.

10. Because, they that impose upon men’s Consciences, exercise Dominion over men’s Faith, which the Apostles denied, saying, they had not Dominion over any men’s Faith.

Comment: This is based upon a passage from Paul in his second letter to Corinth: 2 Corinthians 1:24 (AV) “Not for that we have dominion over your faith, but are helpers of your joy: for by faith ye stand.” The argument thus runs,

You do not have more authority in ecclesiastical matters than Paul.

Paul did not “lord over” the faith of others.

Therefore, you may not lord over the faith of others.

Again the argument is that you are being the hypocrite in your supposed effort to be a good Christin.

11. Because, Imposition upon mens Consciences necessitates them to sin, in yeelding a Conformity contrary to their own faith: for whatsoever is not of a mans own faith, is sin.

Comment: This is from Paul’s letter to the Romans: Romans 14:23 (AV) “And he that doubteth is damned if he eat, because he eateth not of faith: for whatsoever is not of faith is sin.” Paul was writing about those who believed that eating meat would be a sin. Since the matter was an issue upon which there could be a difference of conscience, forcing the conscience of another man would be force that man to sin.

The response to this argument would be, Yes, but you hold opinions upon which there may be no difference of opinion.

12. Because, that Imposition and force wrestles with flesh and blood, and Carnal weapons, which is contrary to the Apostles Doctrine, who said, Our Weapons are not Carnal, but Spiritual, and mighty through God: and we wrestle not with flesh and bloud.

Comment: This argument draws on two separate passages from Paul. The first is from 2 Corinthians 10. In this passage, Paul explains that the resistance to his gospel is ultimately not a matter of other human beings but of spiritual conflict: it is a battle of spiritual matters, a battle of ideas, not a battle of “flesh and blood”:

2 Corinthians 10:1–6 (AV)

¹Now I Paul myself beseech you by the meekness and gentleness of Christ, who in presence am base among you, but being absent am bold toward you: ²But I beseech you, that I may not be bold when I am present with that confidence, wherewith I think to be bold against some, which think of us as if we walked according to the flesh. ³For though we walk in the flesh, we do not war after the flesh: ⁴(For the weapons of our warfare are not carnal, but mighty through God to the pulling down of strong holds;) ⁵Casting down imaginations, and every high thing that exalteth itself against the knowledge of God, and bringing into captivity every thought to the obedience of Christ; ⁶And having in a readiness to revenge all disobedience, when your obedience is fulfilled.

The second passage is from Ephesians 6 and concerns “spiritual warfare”:

Ephesians 6:10–12 (AV)

¹⁰Finally, my brethren, be strong in the Lord, and in the power of his might. ¹¹Put on the whole armour of God, that ye may be able to stand against the wiles of the devil. ¹²For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in highplaces.

The argument is thus, you claim to be concerned with a spiritual conflict, a spiritual matter. If this is so, then you are to use “spiritual weapons” (truth, faith, peace, et cetera).

Now the Court of Charles II was remarkably debauched. The concern was not with true piety but rather political expedience.

An argument for freedom of conscience, 1661 (part 1, with comments)

28 Wednesday Jul 2021

Posted by memoirandremains in law, Politics, Theology, Uncategorized

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Freedom of Conscience, law, Liberty, Quaker, Religious Liberty

The following is a remarkable document from 1661, which was presented onto Parliament in England and which seeks for religious tolerance for everyone. Moreover, it is supported in points by statements made by the Stuart kings (James & Charles) It was presented within one year of restoration of Charles II in May 1600. The men who published the document were Quakers.

The document is written in the form of a series of short propositions. Following the propositions, I will provide a brief comment and try to follow the movement of their (often ingenious) argument.

I have also modernized the spelling in places.

The title page reads:

Liberty of Conscience ASSERTED, And SEVERAL REASONS RENDRED, Why no Outward Force, nor Imposition, ought to be used in Matters of Faith and Religion: With several SAYINGS, Collected from the Speeches and Writings of KING JAMES, And KING CHARLES the First.

John Crook

Samuel Fisher

Francis Howgill

Richard Hubberthorne.

Acts 5. 38, 39.

Now I say unto you, Refrain from these men, and let them alone: for if this Counsel, or this Work, be of men, it will come to nought: But if it be of God, you cannot overthrow it; lest haply ye be found fighters against God.

This was delivered into the hands of the Members of both Houses of Parliament, the last day of the Third Month, 1661.

London, Printed for Robert Wilson, in Martins Le Grand, 1661.

Liberty of Conscience Asserted, &c.

LIBERTY of CONSCIENCE ought to be allowed in the days of the Gospel in the free Exercise of it to God-ward (without Compulsion) in all things relating to His Worship, for these Reasons following.

Comment: The liberty asserted is liberty of conscience with respect to religious practice. The argument is premised upon specifically Christian considerations. There is an interesting phrase, “in the days of the Gospel.” It is unclear whether the authors are referencing all of the time after Christ, or whether they mean a specific period within recent history. If so, the reference would be post-reformation, and likely post-Mary with a knowledge of the Marian suppression of Protestantism.

1. Because the General and Universal Royal Law of Christ Commands it Matt. 7. 12. All things whatsoever ye would that men should do to you, do ye even so to them: for this is the Law and Prophets. That which every man would have and receive from another, he ought by Christ’s Rule to give and allow it to another. But every man is willing to have the Liberty of his own Conscience, Therefore ought to allow it to another.

Comment: Here they give a ground for freedom of conscience: (1) It is grounded in a command of Christ. They define this command as “general” and “royal”. By general, it is a law which would apply to all persons and all places. By being “royal” it would be supreme. In addition, the phrase “royal law” coupled to “liberty” is used in James 2:

James 2:8–13 (AV)

⁸If ye fulfil the royal law according to the scripture, Thou shalt love thy neighbour as thyself, ye do well: ⁹But if ye have respect to persons, ye commit sin, and are convinced of the law as transgressors. ¹⁰For whosoever shall keep the whole law, and yet offend in one point, he is guilty of all. ¹¹For he that said, Do not commit adultery, said also, Do not kill. Now if thou commit no adultery, yet if thou kill, thou art become a transgressor of the law. ¹²So speak ye, and so do, as they that shall be judged by the law of liberty. ¹³For he shall have judgment without mercy, that hath shewed no mercy; and mercy rejoiceth against judgment.

While the text does deal specifically with the point raised, linguistically the combination of “royal law” and “law of liberty” is suggestive.

(2) This is an argument which goes to the moral weight of being a human being: You must be protected in your freedom of conscience because you are a human being. This remains true even if I believe you are wrong.

This is remarkable change from what has been the case in much of human history. When it comes to religion, the belief has typically been that the religious coherence of everyone in the group is necessary to protect the group. If you antagonize a god, we all may be in danger.

Notice also that your practice may be gravely offensive to me.

2. Because, No man can persuade the Conscience of another, either what God is, or how he should be worshipped, but by the Spirit, which God hath given to instruct man in the ways of Truth.

Comment: The rationale here is again explicitly Christian. This one takes a somewhat different tack: Rather than argue from the dignity of a human being, this one argues from the work of God. Rather than seeing religion as merely the outward working of a rite, or a publicly approved confession, it is a primarily an inward matter.

3. Because, All Obedience or Service that is obtained by force, is for fear of Wrath, and not from Love, nor for Conscience sake; and therefore will but continue so long as that fear or force abides upon them.

Comment: This again argues to the fact of subjective conversion: You can make someone engage in a behavior or say as word. What is the value of that? You have not really gained their heart or mind. As soon as they can escape the tyranny, they will.

4. Because, That by forcing, No man can make a Hypocrite to be a true Believer; but on the contrary, many may be made Hypocrites.

Comment: This turns the religious conformity argument on its head. To be a hypocrite is to falsely profess a faith. You do not really believe X, you are mere pretender. Well then, if you goal is coerce conduct in public, you can do so. But, you cannot argue that you giving honor to God because such conduct can only have the effect of creating one is in greater rebellion against God.

This raises the stakes: Are you truly seeking to honor God or to obtain political power? You can get one, but not other by coercion.

5. Because, That in all forced Impositions upon men’s Consciences there is something of the Wrath of man exercised, which works not the Righteousness of God, but rather begets Enmity in the heart one towards another.

Comment: This argument takes up the argument of point 4 and then enlarges the sphere of sin. You not only make the man coerced a worse sinner, you are actually sinning yourself when you coerce another. This argument comes from James 1:20, “for the anger of man does not produce the righteousness of God.” You are provoking anger in another which is sinful in you. Thus, you cannot coerce religion in the name of God without becoming the enemy of God.

You are also increasing the sum-total of sin by creating enmity between men.

6. Because, that by forcing any thing upon men’s Consciences, as to matters of Faith and Worship, many are hardened in their hearts against the things imposed; when as otherwise, through Love and gentle Instructionstheir hearts might be persuaded to willing Obedience.

Comment: Continuing in the line of argument that you are actually working against God in your attempt to force religious compliance, he uses the argument that forcing another results in their being unwilling to hear your case. Perhaps you are making a good point, but who will hear when your crushing their liberty?

This creates an interesting move in this overall argument. In point 2 above, he states that true faith will be ultimately a work of God. Therefore, being a work of God, how can someone be persuaded without compromising God’s sovereignty in the work? A resolution of this conflict can be seen by understanding that there are matters upon Christian must agree: those are matters determined by the Spirit of God that God is and is to be worshipped. But, there may be matters which are more open to variation. This will followed upon in point 8, below.

7. Because, That Persecution for Conscience contradicteth Christ’s Charge, Matt. 13. who bids, that the Tares(or false worshippers) be suffered to grow together in the Field(or World) till the Harvest (or End of the World.)

8. Because, Force is contrary to the End for which it is pretended to be used (viz.) the preservation and safety of the Wheat, which End is not answered by Persecution,because the Wheat is in danger to be plucked up thereby, as Christ saith.

Comment: These two points should be seen together. In Matthew 13, Jesus tells a parable of a farmer who planted his field in wheat. In the evening, an enemy also planted seeds of a plant which looked almost identical to wheat. As the plants grow, it can be difficult if not impossible to tell the difference. The farmer forbids his servants from try to separate the wheat and the weeds so that they don’t accidentally destroy the crop.

Jesus says this is the nature of the Church: it will contains wheat and weeds. It will be very difficult to tell them apart. Therefore, not until the end will there be a separation of the two. The Church will always involve this confusion. If you, even if you are right, seek to tear out every weed may find that you are also tearing out wheat.

The argument is again: You cannot coerce another’s conscience as a Christian without contradicting your claim to be a Christian.

First Amendment Brief

21 Wednesday Jul 2021

Posted by memoirandremains in law

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first amendment, free speech, law

A few days ago, I posted part of a brief on a First Amendment issue. The work has been exhausting, but it is finally completed and the brief has been filed. A copy of that brief as filed may be found here:

filed-amicus-brief Download

A Draft Brief on the Importance of the Court Protecting Freedom of Speech and Religion

16 Friday Jul 2021

Posted by memoirandremains in law

≈ 3 Comments

Tags

first amendment, Freedom, Freedom of Religion, Freedom of Speech, law

I am currently working on a brief in a federal case involving the Virginia Values Act. This is a law whose effect is to require some to photograph a same sex wedding or sell book which advocates a particular sexual morality even when it conflicts with their religion to do so. Since the refusal in this instance is certainly the unpopular position (the law was made by the elected officials, which makes this the majority position), and since it would be surprising that some (or all) of the judges or their clerks would think a religious objection to bigoted if not immoral, it is necessary first to explain the importance of protecting these people and their opinions, even if the majority of the public and even if the judge (or clerk) believes otherwise. The First Amendment is put in place specifically to protect that which “we” find abhorrent.

We should also remember that freedom of speech and freedom of religion function when it is protected for all of us. If the government, at my request, has the power to shut down your speech, tomorrow the government will have the power to shut down my speech.

(This is a draft, so there will typos, missing words, and such. If anyone is kind enough to offer criticism, such as I don’t understand this sentence, please do. This also is not the entire argument. It is merely a preface.)

IT IS THE DUTY OF THIS COURT TO PROTECT THE INTERESTS OF AMICI PRECISELY BECAUSE THEIR BELIEFS ARE NOT THE MAJORITY POSITION

When any two human beings come together in any sort of society, there will be things upon which they disagree^[1]. When those disagreements are trivial, a preference for chartreuse over forest green, the disagreement is tolerated if it is noted at all.

The trivial warrants no response and thus causes no conflict nor needs any protection.

However, when we move to matters of greater concern, matters of religion, of politics, those matters which make us human by which we define ourselves^[2], we find the grace of overlooking a distinction or even civil toleration difficult.

In matter of impiety, Socrates must be sentenced to death. When one’s dignity is assaulted, Hamilton must die at Burr’s gun. When tribes differ in religion, war erupts. When politics clash, the entire world can plunged into war on all sides. And should political distinctions arise within a country, dissidents are “disappeared.”

Matters of human sexuality touch upon all these points at once^[3]. It is undisputed by anyone that human sexual plays a fundamental point in religions. Buddhist monks are monks^[4]. A man in Mali may have multiple wives^[5], and a Roman Catholic priest in Italy may have none. The male priests of Cybele in the Roman Empire castrated themselves and dressed as women^[6]. The ancient Hebrews were forbidden to dress as the opposite sex^[7]. Shakers lived in a communal life; but also lived celibate lives^[8].

That human beings choose among these variations and far more is undisputed. It is also undisputed that the human beings who make these determinations do so honestly and in good faith. They believe that their personal good and the good of the society in which they live in part depends upon their moral decisions in the matter of sexuality^[9].

Moreover, the belief held by various people seem to be undisputable and matters of common sense. Even matters upon which we all hold to abhorrent and criminal are matters upon which others have disagreed. Pedophilia was tolerated among the Roman aristocracy. Moreover, the glorious history of the city of Rome included the kidnap and rape of the Sabine women. In our recent history, the members of Isis under the guise religion approved kidnap, rape, and slavery of women. Slavery was shamefully tolerated in the United States for nearly 100 years of nation (and longer when we count it in the colonies). Aztecs worshipped their god by murdering parents before children so that they could murder the child while the child was weeping.

How then will we resolve these matters? Our options range between (enforced) conformity of opinion and conduct or civil toleration. All decisions will entail a combination of both: conformity here, toleration there.

We in America demand conformity among everyone in agreeing that pedophilia, kidnapping, rape, slavery, murder are utterly abhorrent and not to be tolerated under any circumstances. (And rightly so.) Our civil tolerance turns upon the concept of consent: a child does not consent; the victim of rape does not consent.

And while consent is the moral boundary which marks our degree of civil toleration when it comes to conduct; there is no need for consent when it comes to opinion. Indeed we hold that one may advocate for these matters provided they do not result in the conduct.^[10]

When it comes to what I think, believe, hold dear, or despise; I do not need your consent, nor do you need mine. I will make my decision about such things; you will make yours. The government will not become involved unless you infringe upon my conduct and either coerce or prevent me from making my own decision in such matters.

Only where your belief results in violence to my body or property will the government will the government impose itself. As Thomas Jefferson stated the principle, which has been repeatedly found in the law:

The error seems not sufficiently eradicated, that the operations of the mind, as well as the acts of the body, are subjects to the coercion of the laws. But our rulers can have authority over such natural rights only as we have submitted to them. The rights of conscience we never submitted, we could not submit. We are answerable for them to our God. The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.

(Thomas Jefferson, Notes on the State of Virginia, Query XVII, “Religion”)

It is the resolution which we have reached in matters of religion and politics. The European wars between Roman Catholics and Protestants during the Colonial Period of America and the religious wars which are taking place in our time in many places do not have a place in America. In some other country, the people may take up weapons over opinion and religion. In our country, these things cannot be matters of war. It the job of the government is to keep the peace and permit both sides to hold vigorously disputed and contradictory position.

This toleration does not mean that each individual feels happy about that toleration. We each, confirmed in the commonsense and moral goodness of our own position, think those who disagree to be either mad or immoral. Thus, the temptation always arises to seek an imposition of conformity to our position.

That desire for conformity and the rejection of that conformity is made in good faith; it is made honestly. Should you and I disagree, we will seek to rescue the other from error (and from the concomitant danger to our society)^[11]. If enough agree with me or with you, we will go to the legislature and demand a law prohibiting the exhibition of this dangerous, offensive position.

That is the nature of the world. Laws prohibiting blasphemy and lese majeste are not uncommon in history. The State Department has published advisements about current laws prohibiting blasphemy^[12] and lèse majesté^[13] around the world. The laws are always popular: A majority constituency is always pleased^[14].

And if it were not for the independence of the judiciary, such laws would be promulgated and enforced throughout this country. But there are courts: these courts were put into place precisely because the temptation to maximize conformity to the general will always be the most popular to reach a psychological state of comfort for the greatest number of people.

This is not to deny that the psychological state is a good. The distress that an honest adherent feels by those who disagree may be profound. It does feel degrading to hear and see those who disagree do so publicly.^[15]

But, however important that psychological well-being, even the psychological well-being of the greatest number, and however much the individual judge in personal life sympathizes with one-side in the debate, the duty remains that the individual having donned a robe and taken an oath has the obligation to protect the speech and religion of those whom the judge personally finds repellant.

As Justice Stevens wrote, “[T]he federal courts — and particularly this Court — have a primary obligation to protect the rights of the individual that are embodied in the Federal Constitution.” ( Harris v. Reed, 489 U.S. 255, 267 (1989), Stevens, J., concurring; Cobell v. Norton 212 F.R.D. 14, 20, (D.D.C. 2002) [“ the Court is mindful of its obligation to protect the free speech rights of defendants.”])

Moreover, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” (Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2593) That is not a liberty which ends merely because you do not like or approve my identity, or because you find my identity, my opinions, or beliefs wrong. And where the political process will not act to protect fundamental rights to speech, to religion, it is the duty of the court to protect those rights even for those whose beliefs and opinions do repel the majority:

The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

(Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2605.). The issues raised by the Virginia Values Act (the “VVA”) concern not merely speech and religion, but speech and religion which touches upon the most fundamental values as human beings and fundamental rights as those within the protection of the Constitution. As Justice Kennedy explained in arguing that same-sex marriage was protected by the constitution:

[T]he right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U.S., at 12, 87 S.Ct. 1817 ; see also Zablocki, supra, at 384, 98 S.Ct. 673 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574, 123 S.Ct. 2472. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386, 98 S.Ct. 673.

(Obergefell v. Hodges, 135 S. Ct. 2584, 2599 (2015).) The VVA (as applied to Amici) seeks not merely to give space to one opinion but to foreclose all others. The constitutional privileges and obligations of the courts which led to Obergefell establishing a right to same-sex marriage, likewise give protection to those who disagree with the decision, whose religious beliefs or conscience conclude differently. Indeed, the very importance and sensitivity of the subject and the importance to all involved is precisely why this Court must protect those interests:

As Stromberg and Lovell demonstrate, there are some purported interests — such as a desire to suppress support for a minority party or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of ideas — that are so plainly illegitimate that they would immediately invalidate the rule. The general principle that has emerged from this line of cases is that the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 65, 72 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 535-536 (1980); Carey v. Brown, 447 U.S. 455, 462-463 (1980); Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-65, 67-68 (1976) (plurality opinion); Police Department of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972).

(City Council v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)) In the act of protecting the minority position, the Court protects the dignity of those persons as human beings: “our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty. ” (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 769 [citation and internal quotation marks removed])

This dignity is upheld by means of the Court prohibiting the political branches from forbidding certain opinions and dictating others. In fact, by forbidding restrictions on speech – even unpopular speech — the Court upholds the legitimacy of the political branches by maintaining the democratic and republican ideals.

First, where citizens conclude that they cannot speak, that they cannot influence, they will begin to conceive of the government not as representative of them but as a tyranny that rules over them.

Second, the presupposition of a democratic system is that you have the same moral value as me: we are “created equal” and have equal merit to voice our opinions and give our vote. To the extent we have the power to shut-up or shut-down our fellow citizens using the power of the government, we undermine the legitimacy of the government.

Third, it protects the right to hear ideas with which I currently disagree:

The constitutional guarantee of free speech “serves significant societal interests” wholly apart from the speaker’s interest in self-expression. F irst National Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978). By protecting those who wish to enter the marketplace of ideas from government attack, the First Amendment protects the public’s interest in receiving information. See Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Saxbe v. Washington Post Co., 417 U.S. 843, 863-864 (1974) (POWELL, J., dissenting).

Pacific Gas Elec. Co. v. Public Util. Comm’n (1986) 475 U.S. 1, 8. It is because the issues raised by this appeal are of such importance to the people on all sides that the Court’s obligation is to make room for speech and religion (even if we will hear things which distress us):

If the topic of debate is, for example, racism, then exclusion of several views on that problem is just as offensive to the First Amendment as exclusion of only one. It is as objectionable to exclude both a theistic and an atheistic perspective on the debate as it is to exclude one, the other, or yet another political, economic, or social viewpoint

Rosenberger v. Rector & Visitors of University of Virginia (1995) 515 U.S. 819, 831. The First Amendment is offended when anyone is kept from “marketplace”.

It is that public marketplace, unregulated by the government (in almost all circumstances) that provides the response to those who readily support the law in question. Rather than obtaining government power to forbid my opponent to speak, the sides are to go to their fellow citizens (however much they think the other wrong) and persuade them. Likewise, they can both go to the public and persuade them: Do not patronize that photographer, do not buy books from that publisher, do not hire that painter, because they advocate things which should offend us all.

But the government may not do so.

The parties herein before the Court contend that the Virginia Values Act, however well meaning, however good for the greatest number, is also precisely the sort of law – when applied to these parties – which offends against the Constitution and which this Court has no choice but to strike down as applied to appellant and as applied to these amici of the Court.

^[1] The literature upon conflict, tolerance, social organization is immense. Plato and Aristotle, opined on the issue. Hammurabi and the Bible law out rules for what may and may not be done or thought. The issues at stake involve political theory, law, psychology (individual and social), et cetera. To provide an example of some contemporary overview of these issues as involved with legal one could perhaps start here: Pluralism and the Law, ed. Arend Soeteman and editor First Name editor Last Name or author special case (Dordrecht: Springer International Publishing, 2001), 1.

^[2] “Finding oneself is a misnomer: a self is not found but made.” Jacques Barzun, From Dawn to Decadence(Harper Collins: New York 1972), 785 *****

^[3] See, e.g., Carole M. Cusack, ed., Religion, Sexuality, and Spirituality: Critical Concepts in Religious Studies(New York: Routledge, 2016), 1; Mark Jordan, “Spiritual, Sexual—and Religious?,” Harvard Divinity Bulletin (Autumn/Winter 2019), https://bulletin.hds.harvard.edu/spiritual-sexual-and-religious/.

^[4] Soko Morinaga, “Celibacy: The View of a Zen Monk from Japan,” Vatican, accessed July 15, 2021, https://www.vatican.va/roman_curia/congregations/cclergy/documents/rc_con_cclergy_doc_01011993_zen_en.html.

^[5] Stephanie Kramer, “Polygamy Is Rare Around the World and Mostly Confined to a Few Regions,” Pew Research, December 7, 2020, https://www.pewresearch.org/fact-tank/2020/12/07/polygamy-is-rare-around-the-world-and-mostly-confined-to-a-few-regions/.

^[6] Benedikt Eckhardt, “Meals in the Cults of Cybele and Attis,” in The Eucharist – Its Origins and Contexts, ed. David Hellholm and Dieter Sänger, vol. 3, Near Eastern and Graeco-Roman Traditions, Archeology (Tübingen: Mohr Siebeck, 2017), 1779-94.

^[7] Deuteronomy 22:5.

^[8] Erin Blakemore, “There Are Only Two Shakers Left in the World,” Smithsonian Magazine, January 6, 2017, https://www.smithsonianmag.com/smart-news/there-are-only-two-shakers-left-world-180961701/.

^[9] “Decision” herein means one’s moral valuation of human sexuality. No inference is made that one chooses their sexual desires as one would choose a pair of shoes. Obergefell v. Hodges (2015) 135 S. Ct. 2584, 2596 (“ Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”)

^[10] See for example, The Atlantic at least obliquely raised a question about mandatory reporting laws for child pornography (Alice Dreger, “What Can Be Done About Pedophilia?” The Atlantic, August 26, 2013, https://www.theatlantic.com/health/archive/2013/08/what-can-be-done-about-pedophilia/279024/.) And the substance of the article was responded to by The National Review (Wesley Smith, “Normalizing Pedophila 2,” The National Review, August 27, 2013, https://www.nationalreview.com/human-exceptionalism/normalizing-pedophilia-2-wesley-j-smith/) The government permitted speech which would be at troubling to many and perhaps overwhelmingly unthinkable to others. The government then permitted a response. We could provide examples pertaining to slavery and racism.

^[11] “We see this in the fact that things which were borne for centuries are now declared to be unbearable ….It is tempting for those out of sympathy with this turn to see it simply in the light of illusions; to see authenticity, or the affirmation of sensuality, as simply egoism and the pursuit of pleasure, for example; or to see the aspiration to self-expression exclusively in the light of consumer choice. It is tempting on the other side for proponents of the turn to affirm the values of the new ideal as though they were unproblematic, cost-free and could never be trivialized. Both see the turn as a move within a stable, perennial game. For the critics, it involves the embracing of vices which were and are the main threats to virtue; for the boosters, we have reversed age-old forms which were and are mode of oppression.” Charles Taylor, A Secular Age (Cambridge, Mass.: Belknap Press of Harvard University Press, 2007), 480.

^[12] https://www.osac.gov/Content/Report/8a3d7716-5743-4f14-b430-195206ddb577

Security Alert: Peshawar (Pakistan), Online Threats Against Religious Minorities, ‘Blasphemers’

8/2/2020

^[13] “Lèse Majesté: Watching what you say (and type) abroad” 8/29/2019 | Report OSAC Analysis

https://www.osac.gov/Content/Report/e48a9599-9258-483c-9cd4-169f9c8946f5

^[14] Rousseau, general will

^[15] It must be noted that such psychological distress is mutual. The sides have each issued an anathema upon the other. Each side sincerely believes the other benighted. And each side can justify the infliction of psychological distress upon the other with the justification that the other “deserves” to feel bad.

The State Cannot Give Lesser Protection to Religious Speech than it does to Political Speech

09 Friday Oct 2020

Posted by memoirandremains in law

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Capital Hill Baptist, Cruz, first amendment, law

Freedom of speech “is essential to our democratic form of government.” Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018). That freedom prohibits the government from “regulat[ing] speech based on its substantive content or the message it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). And as a corollary, it ensures that the government “may not favor one speaker over another.” Id.

Introduction to Amicus brief filed by 34 Senators in favor of the petition of Capital Hill Baptist Church.