What’s Wrong with the World

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What’s Wrong with the World is dedicated to the defense of what remains of Christendom, the civilization made by the men of the Cross of Christ. Athwart two hostile Powers we stand: the Jihad and Liberalism...read more

Two updates

First, an update on SB 1146. The law has been amended in the following ways, making it worse.

--It now is absolutely explicit that it applies not only to student admissions but also to hiring.
--The law is explicit that "transgender" students would have to be accommodated in the facilities of their "gender identity."
--The law is now clear that homosexual "married" couples would have to be accommodated in married student housing, if such is offered.

The law has evidently had some cosmetic changes made to it which I hope will not induce any schools to compromise or withdraw their opposition.

--It permits schools that accept state funds (via their students) to require "mandatory religious practices," presumably such things as going to chapel. This is apparently a softening of the stance on prohibiting "religious discrimination."
--It permits such schools to enforce "moral codes," as long as these are applied universally without regard to a student's claim to sexual orientation or gender identity. So what does this mean? It means that as a Christian school you can't have a "moral code" that bans specifically homosexual practice, though you can require students to confine homosexual practice to pseudo-marriage. Wow, I'm so impressed!

The National Catholic Register rightly sees that this should mean that any faithful religious school (naturally, the NCR is applying it specifically to Catholic schools) will have to forego state funds if this law passes the Assembly and is signed.

An update on the Iowa Commission that would like to control the activities of churches:

The commission, in response to lawsuits, has changed the language of its brochure as to how non-discrimination law concerning "sexual orientation and gender identity" applies to churches. The previous wording, which sparked the suits, was,

Where qualifications are not related to a bona fide religious purpose, churches are still subject to the law’s provisions. (e.g. a child care facility operated at a church or a church service open to the public)...

The new wording at that point reads,

Places of worship (e.g. churches, synagogues, mosques, etc.) are generally exempt from the Iowa law’s prohibition of discrimination, unless the place of worship engages in non-religious activities which are open to the public. For example, the law may apply to an independent day care or polling place located on the premises of the place of worship.

So what does this mean? Well, presumably, nobody's going to know for sure what it means until we either see how it's applied or until it's hashed out in court. Apparently the Commission is trying to do something like what I suggested in this comment they might try to do. They are trying to define what they think of as "secular" activities located on church grounds and then apply all the heavy-handed force of the law concerning "sexual orientation and gender identity" to the facilities insofar as they are used for those purposes. One example in the new wording is an independent daycare located on the premises of a place of worship. What's an independent daycare? What does that even mean? I'm guessing that the person who wrote it was thinking of a situation where the religious facilities are rented by a non-religious organization to run a daycare. I don't even know for sure if that happens, but it might well happen. Many church facilities are rather desirable venues, when you stop to think about it, for many things, and one can well imagine that a church might try to bring in some extra income by renting the church building to some non-church entity for all kinds of things, including a daycare, some of which would be open to the public. (Note, too, that even if the event isn't open to the public, conservative legal geeks have been worried for a long time about possible "discrimination" in renting a church facility to private parties of non-members for weddings. If your church brings in some extra income in that way, are you "discriminating" against non-member "weddings" that are same-sex?)

I know for a fact that houses of worship are often used by local governments as polling places. I've been voting in a Christian Reformed Church for something on the order of a decade or more. Presumably, again, this would be a way of making extra income for the church. And, y'know, "trans" people sometimes have to go to the bathroom when waiting in a voting line, and they shouldn't be made to feel uncomfortable on election day, blah, blah.

But can one count on the Commission only to apply these regulations in a restricted circumstance only when the facilities are being rented or used by some non-religious organization, corporation, or government body? Despite the word "independent" before "daycare," I'd say that's still not clear from the brochure, since that's only an example. The previous sentence envisages a situation where the "place of worship engages in non-religious activities which are open to the public." On the face of it, that sounds like it could apply to activities that are ministries of the church itself, including a non-independent daycare (a daycare run by the church), a non-independent church school, a church-run summer camp, and so forth.

Maybe the actual person who wrote the new language wasn't thinking about that. In all honesty, I think the Commission is flying by the seat of their pants. I think they are being sloppy. They clearly want to control "discrimination" in relation to some uses of church property, and in my opinion they want to make it up as they go along. It's impossible for them to be precise, partly because they don't really care all that much about being precise, but partly because they really think churches need to be controlled, dangit!, when interacting with anybody outside of their own group of insider members, and they are going to try to see how they can do that without running too blatantly afoul of the First Amendment.

The Alliance Defending Freedom is having none of it, because as they point out this still means that the Commission is arrogating to itself the right to decide what count as non-religious activities, a bona fide religious purpose, and the like.

We will have to see how this all plays out, and I say again, kudos to the ADF.

Comments (53)

"--It permits such schools to enforce "moral codes," as long as these are applied universally without regard to a student's claim to sexual orientation or gender identity. So what does this mean? It means that as a Christian school you can't have a "moral code" that bans specifically homosexual practice, though you can require students to confine homosexual practice to pseudo-marriage. Wow, I'm so impressed!"

This is so bizarre it would be laughable if not for the fact it is nearly law in California. In some ways this is even worse than before because it even more directly coerces these institutions into going along with these pretend marriages. John Inazu spoke about this bill on Phill Vischer's podcast recently, and mind you these guys are probably overall less alarmed than we are about religious liberty issues, but John was pretty clear this particular issue in California is the real deal. He did mention California law has some quirks that will keep this contained to California (for now), and if I understood this correctly, it has something to do with this law being able to pass a neutral, generally applicable law (that does not target any particular religious practice or belief). It was very odd to me seeing as how the LGBT activists have tried to argue at every opportunity that man/woman marriage is just a religious belief and this is the reason it cannot be enshrined in law and somehow it directly targets them. Ok, I kid, not odd at all, of course they would argue whichever way is convenient for them in the moment. They clearly do not care about consistency.

Anyway, I am probably doing a terrible job explaining it, but I hope I at least got the gist of it. I do wonder how this would work if what happens in California goes Federal, and on the same basis that any law that categorizes not treating psuedo marriage as real marriage as discrimination that does not target any religious belief (because the marriage/psuedo marriage issue itself is by law not religious), what the effect would be. How would that work in Iowa where the Civil Rights Commission clearly wants the power to determine what is "bona fide religious" conduct? If they dont have to treat any conduct based on the belief marriage only exists between a man and woman as having any basis in religion what could they do? I hope we dont find out.

In a more perfect union, obviously we would not need to appeal to religion alone for this belief because it is eminently reasonable and based in clear natural law, but it seems that option is off the table and seeking protection on the basis of religion is what we have. If I understood this correctly, even the religious option may be largely off the table in California.

If I understood this correctly, even the religious option may be largely off the table in California.

That is correct. The LGBTQ@$)(*& activists characterize any general religious exemption as a "loophole." Their articles repeatedly say that this is "just" an attempt to close a "loophole" that "allows religious schools to discriminate." Religious exemptions from this kind of thing have been widespread all along, so calling them "a loophole" is laughable, as if it were some sort of accident as opposed to a feature of most (previous) non-discrimination laws, a feature that is now being systematically removed, just because they now have the power to remove it. Religious exemptions under 1146 would be restricted to seminaries and perhaps Bible colleges with certificate programs or in which all graduates are automatically ordained--that is, to schools that have as their sole purpose the preparation of students for the ministry in a particular religious body. It seems that any school that offers, say, a 4-year accredited undergraduate degree not involving ordination would be ineligible for even a religious exemption, even if the school has a strong, sincere, long-standing religious identity.

Of course, one option in CA *for the moment* would be to eschew all state funding. No doubt in the end they don't want even that to be a refuge, but the law expressly applies, as far as I can tell, only to schools that receive CA state funding.

At the moment, it _might_ be possible (though I've never heard of a school that does this) for a school to be eligible for a federal exemption but not, under SB 1146, a state exemption. The CA state legislators pretty clearly think that the federal government is being too lenient in giving federal religious exemptions. Hence, the attempt to impose a "scarlet letter" on schools that receive a federal Title IX religious exemption. (It _should_ be a badge of honor.) But right now CA can't block a school from receiving federal funds per se. I myself think eventually the federal exemption will become impossible as well and that the schools should do all they can to "go Hillsdale" and wean themselves off of all government funding.

Isnt the funding these schools receive technically indirect? As in, it is really the students getting access to state loans or grants that they can use to attend the school. To my knowledge these schools are not directly funded in the same way, for example, Planned Parenthood is.

Also, in other news Congress debated the FADA legislation and a Democrat (Barney Frank), although he still opposes FADA, he did indicate that he would support a more broad version that does not single out the marriage issue (http://dailysignal.com/2016/07/12/at-religious-liberty-hearing-democrats-unlikely-backers-of-atlanta-fire-chief/). In principle, this seems fine to me, if a broader version of FADA passes and still protects all that FADA as is protects, great. However, if the California rule mentioned in my previous comment about marriage and neutral laws were to apply, would we have to be concerned that a broad FADA that does not specifically and explicitly mention beliefs about marriage passing would even protect these beliefs at all? The California rule as I understand makes no room for either conscience or religion with respect to not acting as if two men can actually marry each other. So I would think a broad, neutral FADA would be useless, and that is frustrating to me because I find a broader, more neutral language version of FADA more appealing. IF nothing else, it also leaves the door open for judges interpreting this broad FADA to mean that "bigoted" and "discriminatory" views are not included.

At least, in reality, there are already plenty of other laws and precedents that protect people who do not have traditional views on marriage and sexual morality, so they dont really need a FADA. No organization that will pretend that two men can marry needs to worry about losing access to funding like the schools in California that will not pretend that two men can marry do. It is only traditional believers, and perhaps some reasonable non-believers as well, in these areas who are presently in legal limbo.

"I myself think eventually the federal exemption will become impossible as well and that the schools should do all they can to "go Hillsdale" and wean themselves off of all government funding."

That appears to be the direction things are going, but even if schools could wean themeselves of it, they will still face attacks on their accreditation. Anyway, if Christian schools are all but certainly going to lose access to funding, how do you feel about the prospect of Christian churches remaining fully exempt from SOGI "anti discrimination" law nationwide? I dont think this is a lost cause like the prospects of bakers getting to opt out of making "wedding" cakes to celebrate homosexual conduct is, but I admit I am not exactly optimistic. Do Christian Churches need to start preparing for the possibility of weaning themselves off of owning tax exempt property, having paid employees (except for maybe people who lead worship services), and doing anything other than holding worship services, sunday schools, and Bible studies (i.e. nothing that would involve the broader community outside of that church)? That seems to be the overall direction things are going as far as I can tell.

Isnt the funding these schools receive technically indirect?

Correct, but the law takes that into account and even uses some phrase like "benefits from" to cover that. The lawmakers were specifically aiming at the schools whose students use Cal Grants. That's long-standing in these sorts of areas. Hillsdale originally told its students that they couldn't use federal grants and loans precisely because the federal govt. was going to force Hillsdale to engage in affirmative action and submit to all kinds of regulations if its students did accept that government aid. It's been that way for decades. When a school's students accept state or federal aid for their tuition, that school becomes subject to reams of state or federal regulations.

This has interesting ramifications for an old, beloved project of conservatives: Vouchers for Christian K-12 schools. The state and federal grants for college are, as far as I can see, _exactly_ like vouchers at the college level, and look what that has meant! There is no reason to think it would be any different at the K-12 level. In fact, public K-12 education has always been more tightly regulated than college education, so there is every reason to think that the government entities supplying the vouchers would get _extremely_ micromanaging of the education in K-12 schools.

As far as churches and their ministries and regulation, each aspect of this will be fought out separately and will have different prospects. I'd say the prospect looks completely hopeless for acceptance of a dime of government funding, even via voucher, and retaining one's independence. But tax-exempt status isn't (despite the new rhetoric from the left) the same as government funding or even the same as voucher funding, so its prospects are different. I would say the prospects for churches to retain their tax-exempt status are somewhat brighter and will probably vary by locale. Remember that one of the biggest things there is exemption at the _local_ level from property taxes, which would otherwise break any church or school. They have big properties and couldn't possibly afford local property taxes that treated these as commercial properties.

The prospects for direct regulation of church ministries "to the public," a la the Iowa commission's push, are again variable by locale, though it remains to be seen what the SCOTUS will do if such a case comes before them.

The current prospects for telling pastors directly that they can't preach against homosexuality, etc., remain pretty poor (meaning, good for us), though of course that is the intended endgame. In other news, a priest in Italy has been personally sued under some hate speech law or other for reading Romans 1. Needless to say, his bishop censured him and imposed a period of "silence" on him, and his Youtube channel has been disabled.

The precedent, set in 1964, continues to haunt us. The federal Civil Rights Act passed in 1964 outlawed discrimination based on race, color, religion, sex, or national origin.

Senator Everett Dirksen did not oppose that popular piece of legislative overreach. Conservatives knew the legislation was unconstitutional, and thought the judiciary would overturn it; because freedom of religion is expressly guaranteed in the constitution. Therefore, it was assumed; that the right of an individual to discriminate based on religion was protected; and that likewise, the government was prohibited from meddling in the affairs of religious institutions.

The Warren court upheld the constitutionality of the 1964 Civil Rights Act. What we see today, is the bad fruit of this precedent.

My guess is that the anti-discrimination aspects of federal law respecting religion would not have been allowed to stand had they not _explicitly_ included exemptions for churches and religious institutions. That doesn't mean they were good law nor that they were constitutional. They should have been struck down on tenth-amendment grounds.

Over the years the federal government has tried repeatedly to apply non-discrimination law to churches. Hosanna Tabor was the most recent time that they were slapped back. What will happen now in the courts is anyone's guess, and restricting the ability to receive state funding (through students) will probably, at least at first, be treated differently from direct attempts to regulate church or religious institutions regardless of funding.

I would assume purely private clubs that own property are not likely to get property tax exemptions. If that is the case I wonder if churches that find themselves by, for example Civil Rights Commissions, withdrawing from the community and acting like private clubs in order to be free to speak and teach their faith with no fear of penalty will have their property tax exemptions will be questioned.

This seems like another heads they win, tails churches lose possibility if churches are not fully exempt from civil rights laws.

Generally a church automatically gets a local property tax exemption without having to prove that it's engaging in community work or outreach. I believe that being a church is a category in and of itself for purposes of such an exemption. I think the local community would have to be strongly motivated to cut off the property tax exemption in order to make such an argument ("Now you're just a private club and not benefiting the community, so you don't get a church property tax exemption"), and I'm just not sure what would happen legally at that point. But it wouldn't be an obvious argument, because right now a church can be as inward-looking as it wants and still get such an exemption.

Thats interesting, I am half surprised that is not being complained about as a loophole. Maybe someone could suggest that a members only pool hall (members only so they can smoke indoors) could just call themselves a "church" and be tax free.

That all said, the tax stuff is interesting but I think the employment "anti-discrimination" law is both the more pressing and also greater threat. I doubt the ministerial exemption gets fully erased, but I am not that optimistic that church's will get to decide who counts as a minister. So they will have to employ openly LGBT identifying people and will also have to ensure their workplace is not "hostile" (by LGBT activists standards) to LGBT identifying employees. At least if church's can survive paying taxes they will be free to continue being authentically Christian, that won't be the case if they cannot "discriminate" against hiring LGBT identifying person.

>> Of course, one option in CA *for the moment* would be to eschew all state funding. No doubt in the end they don't want even that to be a refuge, but the law expressly applies, as far as I can tell, only to schools that receive CA state funding.

Yes. That this would happen eventually at the state level at least could not have been more clear 15 years ago and actually much earlier. From what I understand of one such CA Christian university, their students use of Cal-Grants is about 8 million a year. That's a good bit less than 10% of a new building that is going up right now on the campus. Maybe 5%. Some have made individual donations large enough to cover multi-year replacements of these grants. So it's a little hard to feel very sympathetic about many of these California schools supposed surprise over the threatened removal of Cal-Grants given what they've been doing with quite large amounts of money. I think many or most of the donors would be very pleased to provide for the independence of these universities from the fools in Sacramento if they knew it would happen. Their generosity is nothing short of amazing, but I'm afraid they're simply contributing to the education bubble.

>> But right now CA can't block a school from receiving federal funds per se. I myself think eventually the federal exemption will become impossible as well and that the schools should do all they can to "go Hillsdale" and wean themselves off of all government funding.

I agree. Because the fact is, and I can hear the counterargument to what I've said above would be "Well that won't work because whatcha gonna do when the feds pull the same thing?" Then you're talking about serious money. Maybe five or six times the state figure per year. And to that I say cross that bridge when you come to it. But yes, the full Hillsdale would be the only answer to that. At least it's harder for the feds to do for obvious reasons. And it's possible that the feds never pull off what CA clearly can.

But the Christian universities by now have virtually all the same problems that the public ones do, to a lesser degree at the moment but not clear that will last. They've cranked up the most profitable majors, which means film studies. They really cranked up the identity politics via diversity initiatives and go ever farther down the postmodernism route with communication studies departments and spiritual studies departments, so that the clearest ideology present on such campuses is a romantic communitarianism. The Gospel has become a romantic spiritualism.

I hate to say it but many deserve to fail. The clique of CA schools are like fund managers in an asset bubble. Breaking from the pack by prudent moves is a firing offense because of the short-term effects of the dumb money piling-in is comparatively negative, so the goal is to run off the cliff at the same time by letting nature take its predictable course–in that case no one gets fired. The Christian CA university presidents hob-knob around together and commiserate, but in the end they keep each other from doing anything except begging and pleading with the bureaucrats in the state capitol. Other than that, they're fully willing to let circumstances dictate.

My basic point that its the supposed educated elites who are running these universities into the ground. These are top-down initiatives by a select few, and the plebes just think its God's will. If you doubt what I've said, take a look at books written by these elites. Some of them have the content and writing of a sophomore. Check out this one. Aside from the content, how an educated man could write such a confused and poorly written book is beyond me. I wish I hadn't wasted the time to read it, but I think the review has captured it pretty well. Probably why the review is getting such a high percentage of 'unhelpful' votes against a tide of fawning reviews that don't even tell you what's in the book.

In theory, taxing a church (whether under income tax or property tax) might be considered as merely treating the church "just like everyone else". But in practice, taxing a church apparently ends up looking like a lot like control of the church. My recollection is that some of the court cases around church / state make this point: the power to tax IS the power to control.

And since state control of the church is a Bad Idea, in our system we have come to equate state taxation of churches as a bad idea, also.

Calif's 1146 is carving into the edges of that concept. In a certain sense (not a very worthwhile sense), a tax exemption has been viewed as a "subsidy", so if you feel free to attack "state subsidies" of churches that don't kowtow to your state-preferred views, you would naturally consider taking away ALL of the subsidies. The logic is understandable, even if suffers from an extension of the notion and substance of "subsidy" based on an analogy rather than on a univocal reality: a tax exemption isn't REALLY just like a subsidy. In some court cases, the courts have made that distinction, have pointed out that there is a difference in the underlying reality of "exemption" and "subsidy" that should not be ignored. But the question (well, one question) is whether the courts will apply those existing precedents here, or not. The distinction (like all proper distinctions) is one that rests on a metaphysical view that respects natural kinds, real divisions of things into different categories, and modern jurisprudence is filled to the brim with legal positivists who repudiate that metaphysical view. These are men and women who are quite comfortable employing Humpty Dumpty's "[a word] means just what I choose it to mean—neither more nor less". I strongly suspect that the 9th Circuit will not, and the Supreme Court as it currently stands now would either go 4-4 on it, or just maybe 5-3 in favor of protecting the churches. (Humpty Dumpty also hits the nail on the head in his following observation: "The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that's all.” Legal positivists simply choose to assert mastery. Words, to them, are tools like chains, the whip and the sword: tools of exercising mastery over others.)

Another question is whether THIS situation, unlike previous ones (e.g. Obergefell) will finally get people to defy the tyranny of courts. And it is hard to see it, for in this situation you have (a) a state, not the feds, pushing the issue (taking federalism off the table), and (b) both the state legislature and the state governor in favor of the change, not fighting a rear-guard action to retain a customary position. This wouldn't be a case of a governor simply refusing to go along with a federal mandate, or a federal administration refusing to accept a court's opinion.

Another question is whether THIS situation, unlike previous ones (e.g. Obergefell) will finally get people to defy the tyranny of courts. And it is hard to see it, for in this situation you have (a) a state, not the feds, pushing the issue (taking federalism off the table), and (b) both the state legislature and the state governor in favor of the change, not fighting a rear-guard action to retain a customary position. This wouldn't be a case of a governor simply refusing to go along with a federal mandate, or a federal administration refusing to accept a court's opinion.

Yeah, 1146 *just isn't* the tyranny of the courts at all. It's the tyranny of the legislature, straight up. I thought it highly ominous that it was a committee in the assembly (which I gather is parallel to the state House of Representatives in other states) that made the law even worse. That bodes ill for any idea that the assembly won't pass the law. It's already passed the state senate.

>> The precedent, set in 1964, continues to haunt us. The federal Civil Rights Act passed in 1964 outlawed discrimination based on race, color, religion, sex, or national origin.

That’s one way of looking at it Thomas, but there is another major way to see it if you think a bit. If in the previous 100 years the standing law of the land hadn’t been flouted with reckless abandon and glee, with extreme injustice observable by all, with obvious and devastating effect throughout the century, yet still at the extreme end of the century so cringingly obvious by reasonable observers witnessing a little girl being denied what was thought a basic good at the time by what even now we still think are charlatans, then something like the 1964 Civil Rights Act is never considered let alone enacted. So there's blame to go around outside the courts and those who thought it just to enact the federal Civil Rights Act, wouldn't you admit?

The phrase “the Constitution is not a suicide pact" is a common one in American political and legal discourse, and it refers to the state. But do you suppose it applies to nothing else? Laws have consequences because of precedents among other things. The conservative view is that they should only be enacted with extreme caution. Indeed it’s my view. But if it were thought to be the case by our forebears that precedents couldn’t be reversed in practice, we’d have an entirely different political system than we have. If political wisdom in the populace can’t be marshaled to change laws that no longer serve a beneficial purpose, then it’s all over anyway and has been since before we were born. In that case the only thing to do is to cast a longing, romantic gaze into the past to the time just moments before it all went bad. Or drugs and alcohol if that’s your pleasure. If precedents can’t be changed, we’re screwed, and have been ever since one revolution or another, whether 1776 or 1789, or the Enlightenment, whatever one thinks that to be. It all depends upon one’s ideology, or social circle, or reading habits. Or something. If the idea that legal precedents can’t be reversed in practice is false, then the assumptions baked into this idea are very pernicious indeed.

"That’s one way of looking at it Thomas, but there is another major way to see it if you think a bit. If in the previous 100 years the standing law of the land hadn’t been flouted with reckless abandon and glee, with extreme injustice observable by all, with obvious and devastating effect throughout the century, yet still at the extreme end of the century so cringingly obvious by reasonable observers witnessing a little girl being denied what was thought a basic good at the time by what even now we still think are charlatans, then something like the 1964 Civil Rights Act is never considered let alone enacted. So there's blame to go around outside the courts and those who thought it just to enact the federal Civil Rights Act, wouldn't you admit?"

Two wrongs don't make a right or even give a right. The Civil Rights Act is a sledgehammer trying to perform brain surgery.

On the subject of the scary Warren Court, how we got there is via Baker v. Carr and there is a truly excellent podcast on it (how it drove one judge to a nervous breakdown) at More Perfect in the espisode, The Political Thicket:

http://www.wnyc.org/shows/radiolabmoreperfect

The Chicken

>> Two wrongs don't make a right or even give a right.

Oh I think even Chickens know what it is to beg the question. This is nothing other than an argument for the status quo, whatever takes that to be. But sloganize on. It feels so good.

>> The Civil Rights Act is a sledgehammer trying to perform brain surgery.

Not surprising you didn't interact with that I said above about a century of blatant lawlessness. No doubt because of your great respect for the rule of law. Perhaps we were screwed at Magna Carta. Oh wait. No, perhaps we were screwed when artists starting portraying lady justice as blind. Something like that?

Okay, SG, I'm not quite sure why you are being so hostile to the Masked Chicken, but it doesn't even make good sense. You're trying to turn this thread into a debate over whether the Civil Rights Act was constitutional, and you're mad at anybody who even thinks in hindsight it was unwise? That's what I'm gathering. Yes, the 1964 act was brought up, but I'm not going to let us get way off-topic onto debating that and certainly not get all annoyed at each other over it. (And I'm not a big fan of its wisdom or constitutionality either, so you can go ahead and be mad at me too, if that's the big idea.) But as far as I can see you and MC are on the same team on the actual topic(s) of the post, so chill out.

>> You're trying to turn this thread into a debate over whether the Civil Rights Act was constitutional, and you're mad at anybody who even thinks in hindsight it was unwise?

Not quite. I'd never seek a debate over that. I don't have any arguments for that, and I didn't take Chicken to be asserting that, though for all I know he was.

It seemed somewhat hostile over my point to Thomas merely seeking to counter what I took to be a common view that the CW Act in 64 is the cause for much of what Conservatives (I'm one) don't like now. It's not hard to show by examples of other nations and times and places that such a legal precedent is neither necessary nor sufficient for radical ideologies of all types that have become entrenched in developed nations.

Frankly, I don't know what to make of the two statements together: "Two wrongs don't make a right or even give a right. The Civil Rights Act is a sledgehammer trying to perform brain surgery." I'm not sure how I would know if Chicken and I are on the same "team". At least I thought I could infer he supposed himself to be declaring we weren't in what he thought some significant way. If three doctors agree that they want to patient to be well again, as they all naturally would, I'm not sure that it's that significant that they'd see themselves on the team of the well-meaning. If there are significant differences on the diagnosis, as there often are, that would tend to form deeper and more specific team memberships, as well as the degree of a successful outcome depending on its relative accuracy. So in terms of membership on teams, the most important and contentious issues will revolve around the more specific ones. I've merely stated the obvious here, but sometimes it's necessary it seems.

I know its not one of the two topics in the OP, but since it is more relevant than the 1964 Civil Rights Act I hope its ok to bring it up. FADA was discussed this week and after those discussions the wording has been changed.

http://www.christianpost.com/news/frc-withdraws-support-bill-gay-marriage-opponents-religious-freedom-congress-fada-166504/

It now is written to explicitly protect both beliefs that marriage is man and woman and also just any two people from government penalty/discrimination. My quick take, this change will just further show the disingenuity of the LGBT activists. They know their side already has all the rights protected by FADA and their rights are very secure. I will be shocked if including their beliefs in FADA has them coming to support it. That said, I also could understand people on our side not supporting it because it is pretty weak, it would give up a lot of ground for good in order to protect a little.

On reflection, perhaps I’ve cracked the Chicken code. I just recalled from yesterday listening to the audio presentation he linked. So perhaps the terse two sentences may have been intended to say that it wasn’t the 64 CW Act, but Baker vs. Carr that was the precedent that has caused our courts increasingly to ignore the separation of powers. That may well be, but if folks can’t even agree on which branch of the three is most responsible, it strengthens the the idea that it's folly to point to single watershed events as causes of Progressivism or Liberalism.

I have no trouble whatever with the idea that Baker vs Carr was wrongly decided. But the simple fact is that all three branches of government have seriously overstepped their bounds, and there should be a lesson in that. The Founders wanted a powerful executive and so we have one, but that doesn’t mean that the Founders were wrong.

Many of the problems we have are due to past successes. I’m always disturbed by how religious folk at least can accept that bad things happen to good people, but can’t seem to acknowledge that bad things sooner or later come from good things in wider matters at least as much if not more. That is why I tend to throw cold water on arguments that can do little else but support a status quo as such and is indifferent to particulars. Such a view isn’t even anti-Progressive, let alone Conservative in the modern sense.

There are a couple of ways in which the 1964 acts were watersheds: 1) They really shattered any pretense of limiting federal power by the 10th amendment. 2) They started delving into the secret motives for which service or employment might be denied and hence put the government in the position of micromanaging private associations, so long as those associations took place in the realm of money-making businesses. That has all sorts of ramifications for government power, even if the specific area of race being micromanaged was a legitimate one for _social_ concern. (I don't actually acknowledge that the micromanagement in the area of sex was _ever_ a good idea, and in fact I am inclined to think that a large amount of discrimination against women, who were supposed to be helped by these acts, was rational.)

Now, all of that is at most tangentially related to the specific area of homosexuality and transgenderism, much less telling churches what they can and can't do, for several reasons. A big reason is the one I pointed out to Thom Yeutter upthread, which is that those acts would certainly have been struck down as unconstitutional on first amendment grounds had they not expressly made exceptions for religious entities. In theory, that could even mean that a given church could, under the acts, be virulently racist and refuse to hire blacks, if it could tie this into its religious beliefs. Distasteful as that would be, it was allowed for first amendment reasons.

Another point is just simply that all states now have mirror acts to those anyway, so that even if the federal government had no right to legislate in those areas (due to 10th amendment concerns), the states would pick up the slack, at which point we would have to think concretely about the wisdom or unwisdom of such laws as policy.

I myself tend to think the harm of such laws (let's just imagine at the state level and set aside 10th amendment issues) has been greater than their benefit, but I can understand perhaps why others might have disagreed in foresight and might still disagree in hindsight.

I think that pretty much covers the bases.

Thanks for that update, DR84, I do consider it relevant.

What a weird amendment! I'm trying to wrap my head around it. What's the point of it? Legally, it seems simply to say that the government can't take away the tax-exempt status of some school or other entity for *affirming* homosexual unions, right? Which is silly, because _no one_ is talking about taking away tax-exempt status for _affirming_ homosexual unions.

Socially, it sounds like an attempt to weaken conservative support for the bill by making the bill sound pro-gay, which is presumably why the FRC has withdrawn support. I _suppose_ that (given just the info. in that article) a conservative could argue that he isn't affirming homosexual "marriage" by voting for the bill but rather just affirming that the IRS shouldn't withdraw tax status from some organization that _does_ affirm homosexual "marriage," which he can support in good conscience. (I guess.)

But it really does look like a poison pill, and I can't help wondering if there is more even in the wording change than that.

I thought the overall objective of FADA was to basically secure the freedom for people in civil society to not have to pretend that same sex relationships are marriages. To what extent it really accomplishes that I am not sure. Regardless of this recent language update, I was getting the impression the reality of FADA was far more limited.

I am as interested in the general contempt for FADA that the LGBT activist left has and what the debate over FADA indicates as far as what will happen. The Equality Act proposal is still waiting in the wings too.

I just briefly looked up the bill. I don't claim to have read the whole thing. I can't tell if it would or would not prevent the federal government from punishing bakers as the state governments are doing or not.

Here's the bill:

https://labrador.house.gov/uploads/First%20Amendment%20Defense%20Act%20-%20H.R.%202802%20-%20Revised%20ANS%20-%207-7-16.pdf

It looks like it is mainly about "discrimination" by the government in areas like grants and tax exemption. It still could be very useful in preventing the federal version of what is happening in California, though. Tentatively, I think conservative congressmen should still support it.

Oh I don’t know Lydia. I think your point #1 is largely confirmation bias. My point is that pinning the watershed event for government intrusion and aggrandizement to the 64 CRA is an arbitrary choice. Just looking at the entry from a legal dictionary on the 10th Amendment (http://legal-dictionary.thefreedictionary.com/Tenth+Amendment/) surely shows as much.

That entry seems to make it pretty clear you could have chosen many preceding events–such as the New Deal–with more justification than the CRA. You seem to be admitting as much when you say the CRA “really shattered any pretense” of limiting federal power. That’s a perniciously vague and subjective statement. Why? What makes it really real here? Why wasn’t it when “Congress began exercising “unprecedented lawmaking power over state and local matters” decades before? Even those who’d choose the Civil War should be aware that the largest government welfare program in history by far began early in the war by the Confederate states to keep Southern men in the army and away from their farms. I think that was a watershed. So much for Southern constitutionalism. (https://www.amazon.com/Southern-Rights-Political-Confederate-Constitutionalism/dp/0813918944/)

So I just can’t see how the CRA was a turning point (watershed) that uniquely led to seeing ”penumbras" and "emanations” not explicitly included. That’s why I see your claim as arbitrary. Parental Liberalism needs no such reasons. I thought that was the point. That’s why all governments tend towards increasing power, and why our task to overcome or counteract what we know has happened rather than to look backwards and strain to fix impossible to prove and strident theories about the supposed winding roads that led there. There are many alternate paths there, and anyone who thinks they can specify the one non-arbitrarily is missing the entire point (and tends to go conspiratorial).

What is so bad about thinking it unwise to see this single event as the watershed, or any single event as most significant for such a complex topic? Why is it so bad to think the large increase in lawyers around the turn of the century could be seen as a harbinger, or that Midwestern radicalism and the New Deal played a role, or that much that SCOTUS did (though I heartily disagree with it) was in large part following public opinion at the time? Or that the lunch sit-ins and other events over 5-10 years were themselves watershed events to which no reasonably responsible legislature should be expected to see as a moral obligation and respond, however imperfectly?

On point your point #2, I’m not inclined to argue that. I never said nor do I think that the CRA was in all parts good law. I know it isn't, and I’d seek to roll back or abolish most or even all parts of it and what it became because of its negative effects. The legal philosophy for some apparently is that if at a point in future years a law is counter productive or clearly harmful it should never have been passed. I think that is highly naive. Laws are that imperfect, whether we want to believe it or not. Just as another example, there was a strong bipartisan movement for “civil service reform” after the CW to get to the political nirvana of a politically independent federal civil service. That gave us what we now know is the pure fiction of a professional bureaucrat that wrought the an army of the likes of Lois Lerner. The “Gilded Age” and “Robber Baron” tropes are used straight off the same 19th century radical talking points ever since and have been only quite recently pretty thoroughly debunked by scholars, not that anyone else has or is likely to notice. Yet the influence of received views of the past show clearly enough that those who control the past control the present.

So let me toss back something to you Lydia. You thought based on my reaction to a terse reactionary statement of Chicken that I would be “mad at anybody who even thinks in hindsight [the CRA] was unwise?” Obviously not. But the question I have is whether or not you could accept that a reasonable person might think your point #1 is very weak, and unwise to cling to without better reasons than you've given? Or would you be mad at those who agree with you on #2 but reject #1 as I do? I honestly don't know the answer, and the Chicken is certainly a wild card.

Ill have to find the link to the article, but there was an explanation of FADA posted where someone said that FADA would definitely not protect the wedding vendors. It only applies to federal government action I believe and the wedding vendors are running afoul of state laws. HB 1523 is essentially a state version of FADA and I believe it did protect the wedding vendors, and of course, an LGBT activist "judge" found it unconstitutional. Which is probably the fate of FADA if it were to be passed. I also lean towards supporting it still, the alternative may be the full erosion of Constitutional protection for traditional believers in many areas of life.

Ill have to find the link to the article, but there was an explanation of FADA posted where someone said that FADA would definitely not protect the wedding vendors. It only applies to federal government action I believe and the wedding vendors are running afoul of state laws.

My question was whether it would protect the wedding vendors from federal action in the event of a federal law (e.g. ENDA) parallel to the state laws. And I'm not at all sure of that either, given the wording. But it _would_ protect against a "Bob Jones" like precedent against Christian colleges or churches, and against a federal move like SB1146. That's my read, anyway.

Oh, SG, just bag it. Yes, *of course* a 10th amendment buff is going to be annoyed at *lots* of stuff prior to the CRA. I was replying *briefly* because you are *threadjacking* and because you have a *bee in your bonnet*.

As far as the broader question of how to tell whether policy is unwise based on possible later effects, no, I'm not saying that it is automatically wrong to pass something based on some merely _possible_ and extremely _distant, future_ effect, but that wasn't all that I was saying about CRA, but I'm sorry that you have a bee in your bonnet and insist on going on and on about it. We might or might not agree about what I actually was saying, and I don't actually care very much, to be honest. Yes, I agree that good things can be misused later and hence very indirectly "lead to" bad things and that this doesn't make the good things into bad things, and no, I don't share in the obsession some historians of ideas have with triumphantly finding "root causes" for every political bad thing in some fatal flaw in some much earlier thing that mainstream people think is good. You and I probably share an aversion to such an obsession, which is unfortunately typical of certain strains of "throne and altar" or "paleo" conservatism.

My annoyance with you has nothing to do with your position on any of my substantive points but only with your apparently feeling oddly compelled to keep discussing the CRA and a bunch of other stuff for unknown reasons.

I have wondered if it would be better strategically to propose smaller, more focused legislation than something as encompassing as FADA. Maybe it would be easier to get a bill through that just prevented what is happening in California with SB 1146 from happening with federal loans. A simple "cannot lose access to federal loans because of beliefs about marriage, sexual morality, and biological sex" type of proposal. I think that would make it harder for the LGBT activist left to scare monger against it and harder for the courts to rule it unconstitutional. Maybe it would even get some First Amendment liberals and left leaning Republicans on board that have been opposing these things on fear of being called "bigots".

FADA looks pretty focused to me. It's a lot like that, actually. And making it clear that the IRS can't go goofing around with tax-exempt status is pretty important, and in some ways more "moderate" than saying an institution can't lose access to direct government funding.

I agree that FADA in reality is pretty focused, and its protections for federal employees, school funding access, and tax exempt status are needed in light of post Obergefell legal reality. It just happens to be the case that it seems to be supported mostly by the socially conservative element of one party, given lip service at best by the rest of that party, and loathed to the core by the other political party, media, academia, and judiciary. At least that is my reading of things. Is there a way to get around that? I may tend towards pessimism in the legal arena, but I would like to think even the most ardent LGBT activist court could not rule a law Unconstitutional that merely said that students should have access to federal loans and grants regardless of the beliefs about marriage/sexual morality/human biology of the school they wish to use those loans and grants at. And also, could not rule it Unconstitutional for a law that says institutions cannot lose tax exempt status for these same beliefs. Anyway, dont get me wrong, I support what FADA intends to do, I am glad their are people trying to make it happen, I am only questioning the strategy. In the end, I am still not a politician and not a lawyer, so I also am not in the best place to know what the most effective strategy is.

I agree that FADA in reality is pretty focused, and its protections for federal employees, school funding access, and tax exempt status are needed in light of post Obergefell legal reality. It just happens to be the case that it seems to be supported mostly by the socially conservative element of one party, given lip service at best by the rest of that party, and loathed to the core by the other political party, media, academia, and judiciary. At least that is my reading of things. Is there a way to get around that? I may tend towards pessimism in the legal arena, but I would like to think even the most ardent LGBT activist court could not rule a law Unconstitutional that merely said that students should have access to federal loans and grants regardless of the beliefs about marriage/sexual morality/human biology of the school they wish to use those loans and grants at. And also, could not rule it Unconstitutional for a law that says institutions cannot lose tax exempt status for these same beliefs. Anyway, dont get me wrong, I support what FADA intends to do, I am glad their are people trying to make it happen, I am only questioning the strategy. In the end, I am still not a politician and not a lawyer, so I also am not in the best place to know what the most effective strategy is.

I would like to think even the most ardent LGBT activist court could not rule a law Unconstitutional that merely said that students should have access to federal loans and grants regardless of the beliefs about marriage/sexual morality/human biology of the school they wish to use those loans and grants at. And also, could not rule it Unconstitutional for a law that says institutions cannot lose tax exempt status for these same beliefs.

I'm afraid you'd be wrong to think that. The ardent activists would love to oppose any such law on whatever grounds they could obtain. If a ruling of "unconstitutional" (however insane from a con-law perspective), they'd take that gladly.

Yeah, maybe I am giving them too much credit. I had a moment of optimism there. To be more realistic:

https://www.hillaryclinton.com/briefing/factsheets/2015/12/17/fighting-for-full-equality/

That is what we have to look forward to. Either Clinton and Congress will make it happen, or if they cant, the courts will. This seems to be as inevitable as Obergefell was in 2012 after Windsor. I think this all happening in 2017 is very likely and at most it will be 2019.

"Work with Congress to pass the Equality Act. The Equality Act would amend the Civil Rights Act of 1964 and related statutes to add gender identity and sexual orientation to the list of protected classes such as race, sex, national origin, and religion. The Act would provide LGBT individuals explicit and comprehensive protection from discrimination in all facets of American life—employment, housing, schools, access to credit, public education, jury service, and public accommodations. Clinton will fight for the passage of the Equality Act to secure full federal equality for LGBT Americans."

They wont stand for churches and schools getting any kind of exemption for employment, except maybe for the leaders, and public accommodations will of course include the wedding vendors. Which is just nutty, how they are counted as public accommodations is beyond me. So this amounts to the Federalization of SB 1146 and also the most extreme "anti-discrimination" laws. So that baker who declined to make a "wedding" cake for two people of the same sex in Texas in the past year, and was not sued, will no longer have that freedom. Unless, somehow, some exemptions can be obtained, this will also be catastrophic for the legal viability of churches. Obviously, it wont take them down in one fell swoop, it will just leave them exposed and vulnerable. They will be sitting ducks for "discrimination" suits from LGBT identifying persons.

>> I may tend towards pessimism in the legal arena, but I would like to think even the most ardent LGBT activist court could not rule a law ...

Well if you think the most ardent are representative in any group, that would be a reason for pessimism on anything.

The most ardent sometimes win the political intra-group fight, and sometimes they lose the wider war. Then sometimes they lose the intra-group fight, but win the war in the end. I'm as Conservative as they come, and I know homosexuals that I agree with me 100% politically. How many think like this I'm not sure. Certainly not then loudest ones. The less ardent often know the more ardent aren't acting in their interests. The devil is in the details.

The federalization of SB 1146 is a possibility, as I've acknowledged already I think, though from the Left Coast it's a far harder hill to climb across the nation. Far harder still to get to the "most extreme "anti-discrimination" laws. Let's not fall prey to idealism. We sometimes forget that what political scientists call “Irish democracy,” the phenomenon by which the citizens resist the mandates of their would-be rulers by simply refusing to comply, is pretty common.

I think it is always useful to be able to project the idealism we perceive in the minds of the most ardent as a thought experiment. I consider myself to have a fairly vivid imagination, so I suppose I can do it pretty well. Utopianism as a thought experiment also has a long tradition. Dystopian narratives as thought experiments have served a similar purpose. However, I think the latter are more enjoyable to contemplate. Ask Mel Gibson or any number of other actors. Quick, think of your favorite utopian movie besides Star Trek, which doesn't really count. See?

I'm not sure if it would be more entertaining to see a) Hillary as president trying to put in force force an Equality Act; b) Hillary as president showing that what only the very naive could have possibly thought anything other than pure cynicism in not advocating for an Equality Act after the election (is there anyone left that thinks there's an ideology in Clintonism?); c) Trump as president. I think Hillary winning the presidency and actually even wanting to pass anything like an Equality Act, let alone having the support to do it, is the least likely by far.

We sometimes forget that what political scientists call “Irish democracy,” the phenomenon by which the citizens resist the mandates of their would-be rulers by simply refusing to comply, is pretty common.

The proliferation of a) vengeful activists, even in relatively small communities (or willing to travel to such communities to create an Incident) and b) state "civil rights commissions" make any kind of "Irish democracy" in these areas very hard. In fact, that's why these anti-discrimination laws nowadays are always accompanied by such commissions--to give them teeth, to swoop in and punish non-compliance, to investigate complaints against particular organizations or businesses. Just ask the bakers in Oregon. There were plenty of people in their *community* who didn't give two hoots if they didn't bake a homosexual "wedding" cake. Heck, there were even _homosexuals_ who didn't want them prosecuted. But they were indeed hounded and fined a six-figure amount, because all it takes is a vengeful, nasty person to complain and an eager commissioner and/or administrative law judge, and you're good to go with these cases. And nobody _becomes_ a commissioner on one of these commissions if he doesn't believe in his mission.

Without consulting bakers in Oregon I knew the category "most ardent" includes "vengeful activist". :)

I would count as "most ardent" as anyone who supports the proposed Equality Act and/or having "sexual orientation/gender identity" added to the Civil Rights Act. With the caveat that they also must hold that it is just obvious that making "discrimination" against people based on "orientation" illegal just obviously means wedding cake bakers have to make special cakes to help people celebrate homosexual relationships and/or religious schools with conduct codes that forbid homosexual conduct "discriminate" against lgbt identifying students.

>> I would count as "most ardent" as anyone who supports the proposed Equality Act and/or having "sexual orientation/gender identity" added to the Civil Rights Act.

Yes definitely. I believe to do so would cause too much dissent within the groups that the hardliners think would support it. I would rejoice if we've seen the last of large bills of any kind. I'm not sure there is any stomach for sweeping legislation anymore.

Even with all three branches of government, Obamacare only passed by cynically sending through early draft papers of what probably couldn't even have been completed in a reasonable way on paper, keeps kicking the can down the road and the painful parts delayed until after the next election. It was a hail Mary that is still up in the air, but the ball will come to earth soon and we'll see if anyone can catch it. I don't think so. I don't think you can create an English style system in a country with a 7 times larger population starting 60+ years after the fact and so far away from when medicine was relatively primitive. Obamacare is the face of large pieces of legislation, and the face is very ugly indeed.

Even HIllary isn't dumb enough to even want to enact such an Equality Act unless she has no higher interests that it would threaten or unless it could be done by executive order. It's like Obama promising dramatic moves on immigration and then doing nothing after getting in office. I seriously doubt he ever intended to. Bigger fish to fry even when you control all branches, and many of these things are just things to blame on Republicans anyway. Not that I minded his inaction, but the point is it only mattered to him before getting elected the first time. There's no money in an Equality Act and there's no payoff to spending the enormous capital required to try. She's not the sharpest knife in the drawer, but she's not stupid.

Exactly who besides social conservatives and maybe some libertarian types would complain about the Equality Act proposal? The media would praise Clinton profusely if she got it through. It is nothing like Obamacare because it is largely symbolic. Yes, it could very well be catastrophic for traditional believer and their institutions and organizations, but that is a feature and not a bug. For most people, nothing much will change. Which, again, is significantly different than Obamacare.

What's the diff. between ENDA and this Equality Law? They sound pretty similar to me. And I hardly think it unlikely that ENDA will pass in the next few years. Unfortunately.

My understanding is the basic difference is that the Equality Act largely removes the religious exemptions that were part of ENDA and even goes as far as explicitly saying RFRAs cannot be used in one's defense of they are sued. The LGBT activists were growing increasingly opposed to ENDA because it did not go far enough.

I dont see any political downsides for whoever can get the Equality Act passed (or the equivalent Court opinion written), seems to me they have all the motivation in the world to make it happen. They will get all kinds of accolades while dealing a major blow to the ability of their opponents to ever challenge them.

They _claim_ it retains the existing religious exemptions for churches and "religious entities" that are covered by religious exemptions under existing civil rights law. But the explicit address to RFRA is an attempt to prevent a Hobby Lobby-type religious exemption for businesses.

"Employment: Any employer with at least 15 employees, as well as labor organizations, would be prohibited from discriminating on the basis of sexual orientation and gender identity. There would be no religious exemption to discriminate against such employees, and all federal employees would be protected under law as well."

http://thinkprogress.org/lgbt/2015/07/23/3683728/equality-act-introduction/

According to this religious exemptions for employment won't exist. I assume this won't totally eliminate the ministerial exemption. That, to some degree, seems pretty secure. However, I would think this will still give them enough legal leverage to impact what is said in done at both religious schools and churches.

Interesting. One site is emphasizing, "Oh, _yes_, there will be the _very same_ religious exemptions that there are right now." Another site is emphasizing, "No way, buddy, no religious exemptions in _this_ law. We'll have those damned Christians under the boot!"

My guess is that the intent and hope is to tighten and severely restrict the ministerial exemption and overturn Hosanna Tabor.

I have not seen what these possible religious exemptions may be either. Not that I want to perpetuate the false comparison between racism and "homophobia/transphobia", but just how racist can a church be? Can a church with more than 15 employees not hire a black person because they are black? I would assume these exemptions, if they exist, would at least be similar for "homophobia/transphobia" as race. Im not aware of any large churches that remained blatantly racist, let alone any that got taken to court for it. Ive read that the Mormons saw the light and ended their racism due to fear of losing tax exempt status, but I am not sure there is any truth to that. Perhaps this is unexplored legal territory. (I have tried to at least google search this topic and did not come up with anything that seemed definitive).

There are recent cases of Catholic schools being sued (and losing I believe) for firing homosexual identifying persons. Im not sure if these touch the Hosanna-Tabor precedent or not. Either way, it is hard to imagine the court coming to the same conclusion again if the teacher that was fired identified as gay or trans. I hope the Hosanna-Tabor precedent is set in stone, but Im not going to be surprised if it ends up being an anomaly. Id assume they would try to restrict the ministerial exemption to just the person who gives the sermon.

Here is a take from left wing media, but I think it is important to note these are not some fringe bloggers or the like. Salon is fairly mainstream.

http://www.salon.com/2016/01/16/this_is_the_religious_rights_radical_new_plan_the_very_real_efforts_to_create_an_american_theocracy_in_plain_sight/


"In the 30-plus years since the Bob Jones decision, the religious right’s basic argument hasn’t changed, but they’ve put enormous effort into changing the cultural and political environment, particularly by building organizational infrastructure—think tanks, law schools (like Pat Robertson’s Regent University School of Law and Jerry Falwell’s law school at his Liberty University), and legal advocacy groups. Over the same period, they’ve advanced anti-gay and anti-reproductive choice agendas which have been much easier to defend in terms of a moral high ground based on traditional hierarchies of power. But ever since the ground began clearly shifting on gay rights, a new phase has been entered.

“The evangelical Protestant Christian Right and U.S. Roman Catholic bishops are intensifying their campaign to carve out arenas of public life where religious institutions, individuals, and even businesses may evade civil rights and labor laws in the name of religious liberty,” Clarkson writes in the executive summary. “By creating zones of legal exemption, the Christian Right seeks to shrink the public sphere and the arenas within which the government has legitimacy to defend people’s rights, including reproductive, labor, and LGBTQ rights.”"

and


"Clarkson uses the term “religification” in a fairly narrow, carefully constrained sense. “The usage for my purposes is not in making the secular religious,” he told Salon, “but in making religious institutions and more of their employees and functions subject to doctrine for purposes of inoculation against societal laws and regulations.” There have been tendencies heading this way for some time, but they got a tremendous shot in the arm in 2012, with the Hosanna-Tabor Supreme Court decision, which found that a teacher was exempt from normal firing protections because she served in a ministerial capacity, having led students in prayer three times a day and taught religion four times a week. The ruling greatly intensified religification pressures, which in turn is why it matters so much to be clear about the lines. “For example, a church receptionist is not exactly a secular job,” Clarkson said. “But it is usually a stretch to call it a ministry by any reasonable standard.”

Along these same lines, in the report, he wrote:

The Southern Baptist manual suggests assigning “… employees duties that involve ministerial, teaching, or other spiritual qualifications—duties that directly further the religious mission. For example, if a church receptionist answers the phone, the job description might detail how the receptionist is required to answer basic questions about the church’s faith, provide religious resources, or pray with callers.”

While the courts may not buy the idea that a receptionist can be reasonably construed as a minister in the legal sense, this is the kind of thinking that is permeating the conservative Christian world in the wake of Hosanna-Tabor.

What we can see going on here is particularly perverse. The receptionist’s job ordinarily has nothing ministerial about it, and being protected by labor laws, for example, in no way constitutes a real “dangerous antireligious attack.” But by seeking to religify itself, the church is effectively trying to roll back the rights of others—both secular employment law protections and their own religious freedom. After all, one could even be a good, believing Southern Baptist receptionist and still feel religiously oppressed by being forced to follow someone else’s bureaucratic religious script."

Yeah, it's pretty ironic for the author of this "report" to call the attempt to have a pervasive religious culture at a _religious school_ "perverse." Funny use of the word "perverse," no? Even aside from the near-pun when they are the ones advocating crazy sexual perversions and mental illness as normal, there is the sheer _perverseness_ of persecuting religious institutions for trying to have a _general_ atmosphere consistent with their profession and with the beliefs of those who are *giving them the money* to keep the doors open--members, parents, students, donors, etc.

Whether the word "ministerial" is the right word or is just being forced upon us by legal circumstances, _anyone_ who has _ever_ had close contact with a sincerely religious school or charity knows full-well that the receptionist and the janitor are part of the identity of the institution and that it does indeed matter what they believe and stand for and who they are.

No kidding, and no doubt this is a one way street. LGBT affirming churches will probably be free to not employ orthodox believers as secretaries and janitors. I also can't imagine them seriously advocating that political groups like the HRC and GLAAD should have to employ open conservative/orthodox Christians as secretaries and janitors in their offices.

It is even more laughable to think about anyone suggesting in all seriousness that these groups should not be able to say or do anything that violates or demeans these employees religious identity.

LGBT affirming churches will probably be free to not employ orthodox believers as secretaries and janitors. I also can't imagine them seriously advocating that political groups like the HRC and GLAAD should have to employ open conservative/orthodox Christians as secretaries and janitors in their offices.

This is one reason why I strongly favor lawsuits against, at least, non-religious entities that openly discriminate against conservative Christians. I don't have the links and names ready to hand, but there was a Christian sportscaster who was recently fired because it was found out after his hiring that he had previously advocated traditional marriage. It was absolutely blatant, not job-related, and the employer was in no way a religious entity. Just some news outlet. He's sued for religious discrimination, and I'd say good for him. It sounds like it's an open-and-shut case. Similarly for the fire chief (I think it was) who was fired because they found out that he had self-published a religious book defending traditional marriage.

I'm ambivalent about the initial wisdom of non-discrimination laws, but we get the worst of both worlds if blatant (and hence blatantly illegal) anti-Christian discrimination can go on while meanwhile Christians are getting punished for the faintest whiff of "discrimination" against homosexuals. It's good for legal pro bono firms to challenge the double standard, which is in any event not written into the laws.

I agree that we should find against the worst of both worlds. I forgot about the ESPN guy. I do try to keep tabs on the Cochran case, does not look like anything much has happened there yet. It was interesting that some LGBT activist democrats such as Barney Frank openly came out in support of him. I hope that bodes well for his case. There may be a lot riding on it.

Do you have a sense on where the courts are with respect to traditional beliefs on marriage, sexual morality, and biological sex being being classified as bona fide religious beliefs and protected accordingly or just pure bigotry? I am not sure if that question is pretty well settled or if the Cochran case and other similar cases might settle it.

There was a pretty good precedent in the case of Julea Ward in a counseling program here in Michigan. That was (as I recall) a federal court. It didn't go all the way up the food chain. The university had to give in and settle out of court when they saw they weren't going to win. So in her case her opposition to homosexual acts was treated as a bona fide religious belief. But it could go pretty much anywhere on the map at this point in other cases. That was a few years ago.

Ah, good to know, I often tend to error on the side of pessimism in these areas. That does sound like a promising precedent, or at very least...it is something. Hopefully future judges cannot just ignore it like it never happened and get away with it.

In other news...

http://www.uc.edu/news/NR.aspx?id=23526

https://stream.org/university-cincinnati-require-diversity-oath-professors-staff/


I wonder if the ADF or similar group could sue for religious discrimination? That is a public university after all. Granted they are in different states, but this is ironic in light of SB 1146. Are they really just that arrogant or completely blind...? I think this fits well with fighting against the worst of both worlds. Fighting against barriers to explicitly private Christian schools existing and barriers against Christians being able to be part of public schools. The irony will go off the charts if they also demand incoming students affirm "diversity".

There really is something new like every week these days.

I've read about that diversity and inclusion statement in the application process. It's a bad thing, but I'm afraid it isn't lawsuit-fodder, because precisely _what_ they have to say is left somewhat vague. If I were coaching someone applying for a position there, I would coach them to be deliberately obtuse and to write up something about the way in which their research is unique, for example, and hence would add to the diversity of the school. Or, if they were really brave, and a Christian and/or a conservative, they could refer to research showing conservatives and/or Christians underrepresented in the academic world and say that they add to the diversity of the school by being a member of one of these ideologically underrepresented groups.

I'm not saying this is likely to _work_, but the upshot would probably just be that they weren't hired, and you never find out exactly why you weren't hired. If they succeeded in getting a job, it would be without actually having to take any kind of "loyalty oath" to values they oppose.

So, basically it would be too hard to even proven any discrimination. Given the extent that the progressive understanding of "diversity" intentionally and explicitly excludes traditional Christianity, I think an argument could be made that this is discriminatory intent. I doubt it would go anywhere in a court, yet I dont doubt that it is actually true. Funny how things work.

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