What’s Wrong with the World

On point two: what are his damages? Moral outrage and mental anguish, alone, are only compensable in a legal action if the defendant intentionally did something outrageous knowing or under circumstances where he should have known, that such outrage and anguish would result. A court would very likely find that the objection and anguish here is idiosyncratic, at least for someone going to an IVF clinic. Especially because the father doesn't have any out-of-pocket losses associated with the clinic's failure to disclose its process, he would have a tough row to how relying on the common law alone.

The common law deals much more comfortably and predictably with people who lose ascertainable quantities of money or property, or at least suffer discernible physical injuries, than it does with people whose purely intangible interests are harmed. (Note that the florist stalkers in the first link were pursuing a statutory cause of action, not one created or sustained by the common law alone).

In some ways it's unfortunate, of course. Maybe I'm wrong; maybe the father, if he had sued promptly, could have shown that it's objectively outrageous to fertilize a dozen of a couple's eggs without telling them that's what you're going to do. But I have read too many materialist legal decisions to be anything but skeptical.

Especially because the father doesn't have any out-of-pocket losses associated with the clinic's failure to disclose its process, he would have a tough row to how relying on the common law alone.

Actually, I'm pretty certain he does. Cryo-preserving them all this time presumably isn't free, and I would assume it would be his expense or his and his wife's, as they had a choice what to do with them. Unless that was covered by the original IVF fee. And if at this point he convinces his ex-wife to have them implanted, there will be, to put it mildly, further expenses.

But it's a sheer matter of information. I had been under the impression that fully informed consent is something medical practitioners worry about quite a lot because of potential lawsuits.

Look at it this way: Suppose that this guy was totally amoral but that his wife developed scruples about destroying the embryos. Or just that she wanted to have more babies than he did. (There *are* other legal cases where that kind of thing has happened.) And suppose that the courts awarded her custody, the embryos were implanted, some survived, and he ended up with child support payments. Even aside from any mental anguish caused by his own moral feelings, that would surely be the kind of *consequence* that a person would have the right to realize could happen. I don't see how the lab can saddle you with a bunch of embryos and all the possible ramifications of that without informing you ahead of time.

The Bee is awesome, but I think Duffelblog is a wee bit better.

The world is full of peril; but by my beard, if southern Michigan were to gain, even by human-generated global warming, the climate of northern Georgia, I really doubt the McGrews would complain. Not even once.

In Georgia we have had absolutely the most fantastic weather, and I welcome any climate change that delivers more winters like this one.

Who can read blog comments when it's 68, sunny, with a light NW breeze out of the Appalachians?

Do you think the Barronelle result could set precedent that could be used to go after religious groups? Denny Burk has said he thinks it does. My understanding is the court has said her conduct was invidious discrimination not protected by the Constitution that the state has a compelling interest to stamp out. Seems ominous to me

DR84, it almost seems to me like we stand to lose more by an appeal to the Supreme Court. The court makeup is double-plus ungood on this issue, even if Gorsuch were both rock-solid and were confirmed (on both of which I have some doubts--various homosexuals coming around now talking about how "supportive" he is of their "marriages," though if he's *really* an originalist maybe it will be irrelevant...?). But really, just think if Scalia himself were still on the court and this case were appealed. What damage might be done by the same court that gave us Obergefell? Whom are we going to hope for a change from? Kennedy?

Yet I understand why the ADA doesn't just want to give up.

Paul, on the climate front, I don't want things like fire ants and other such nasties. I occasionally pass on the "this is why I live where the air hurts my face" memes on social media. But I can't find it in my heart to complain about a gorgeous day like today. For two evenings in a row I have gone out star-gazing on a gorgeous sky with not a cloud in it, no snow on the ground, and warm enough to enjoy it. And I sat out in the sun today and scratched the neighbor cat's head. Really lovely.

I share those concerns and also understand that there is good in just fighting tooth and nail for what is right. Hard to imagine Kennedy throwing his "gay rights" legacy away in order to side with Barronelle if they did take her case. If this case helps set a precedent that Barronelle's conduct is classified as invidious discrimination against a protected class in which there is a compelling state interest to eradicate, how much leeway do private/non-profit organizations have to invidiously discriminate and by doing so undermine the compelling state interest? That is the sort of question that seems to have no direct answer. As far as I know, the Constitution does not explicitly make a distinction between for profit public accommodations and non profit private organizations. So, it seems that it is possible that if the Constitution does not protect Barronelle's conduct it won't protect anyone else's either, including a church that won't act like a "same sex marriage" is a marriage. Which is not say that maybe there is no other legal protection, it just will be from various past precedents and legislation (such as RFRA). Speaking of RFRA, I would imagine the "compelling state interest" claim will make RFRA laws useless in these cases.

I am aware Barronelle has consistently lost, but it seems the state supreme court has amped up the language a lot...I dont remember hearing about this being invidious discrimination and there being a compelling interest to stop it before. Also, because they are appealing to the Supreme Court the stakes are much higher. What can happen if the Supreme Court effectively rubber stamps the Washington State Supreme Court's decision? That's what I am getting at mostly. Also, if that happens, the damage will be done and even if Trump could replace some of the court liberal's with originalists it is not likely they could do much for religious liberty.

From, The Age of Belief, Anne Fremantle, 1955 edition, pg. 104:

St. Bernard distinguishes between three aspects of freedom: freedom from sin, freedom from misery, and freedom from necessity. The first two cannot be complete, here, they will exist fully only in patria, in the fatherland of heaven. But from fate, or necessity, the Christian must believe that every human being is free here and now. The fourth Christian freedom, from the state if it command evil, was asserted confidently by all the Church's representatives throughout the Middle Ages - and, indeed, from the time the letters A. U. C. (ab urbe condita-from the beginning of the city-the letters by which the Romans date their era) were succeeded by the letters A. D. - Anno Domini, the year of our Lord. Opposition to the Church's concept of man's final freedom even from the State was challenged first by the pagans, for whom the State included all the Church was [was] for Christians, and later by the inheritors of the Roman State - the advocates and partisans of the Holy Roman Empire. The Church itself, primed by the great Gospel command, "Render unto Caesar the things that are Caesar's," believed in and taught the supremacy of the State over the, "things that are Caesar's," but insisted over and above the area the State controlled was an inviolable area, over which individual man alone was master. The State accepted this position, at first because it could not do otherwise, for it was the Church that hallowed and protected Charlemagne and his successors, who desperately needed the Church's help; later, because it was frankly beaten by the Church - at Canossa in the person of the Emperor kneeling in the snow to apologize to the Pope for trespassing on the forbidden area; at Canterbury in the person of Henry II doing penance for the murder of St. Thomas a Becket.

These collective freedoms, from necessity and the ruler, if he command what be against God's will and law, belong indifferently to every creature, whether he be good or bad, Christian or pagan. So St. Bernard insisted; so the Church still insists.

I guess history is going in retrograde, with the pagans attempting to reassert their very much flawed philosophy that the State is lord and master of man's necessity and morality. When, oh, when, will the Church make the Emperor knee in the snow, once again, for trampling on the forbidden area of a man's rightly-formed conscience? There cannot, now, nor ever be a true separation of Church and State if the State is to ever treat man according to his essential dignity seen in the light of God. It falls to the Church to defend conscience, but they have abrogated their strength of virtue for an easy comradery with the State. It has forgotten that Caesar and Christ rule two distinct kingdoms. It will pay the price if it does not strengthen itself with virtue.

St. Bernard, pray for us.

The Chicken

What can happen if the Supreme Court effectively rubber stamps the Washington State Supreme Court's decision?

At a minimum, all the other cases in this vein that the ADF is defending will go south. Hopeless. States will be allowed to do their worst *at least* to for-profit businesses--the florists, bakers, photographers, etc., etc. A further possibility is that the 14th amendment will be interpreted to mean that homosexuality is automatically a protected class for all government action--e.g., all federal and state employers, contractors, etc.

Also, if that happens, the damage will be done and even if Trump could replace some of the court liberal's with originalists it is not likely they could do much for religious liberty.

Well, no, not necessarily, because SCOTUS can overturn its own decisions. If this case were decided wrongly, a later SCOTUS with a different makeup could overturn it. Not that I'm holding my breath.

Yes, I finally got a chance to read through the decision. The court does affirm a First Amendment right for religious groups to be free of anti discrimination law that could change force a change in the speech or ideology of the group. Which is good. It also references Bob Jones. Which was all about using anti discrimination law to change speech and ideology of a religious organization. Don't know what to make of that.

So perhaps if nothing else, whatever precedents protected Christian schools from getting Bob Jonesed could be undone if this gets rubber stamped. No big surprise there.

I would think the LGBT activists will be thrilled if the court takes this case. That alone would indicate the court is ready for another landmark "gay rights" case. Making sexual orientation a protected status federally is the next big goal after all.

On your point about prostitution: I recently saw an article online (sorry I could not find the link)about an unemployed woman in Germany. Since prostitution is legal and she was being offered a job at a brothel she face the choice of either becoming a prostitute or having her unemployment benefits cut because she refused a legitimate job that she could do.
Just WOW!

Yeah, that was some years ago. It was a real case, though we never heard the end of it. I'm going to guess that the unemployment board backed down rather than actually cutting her benefits. But in Germany, who knows?

I grant the similarity with my hypothetical case. If we treat prostitution as like any other job or service, then why wouldn't all the usual laws apply?

More to Titus's comment above about the extra embryos: I'm really, really betting that, "We may create up to x extra embryos" was somewhere in the diamond-point print, not that the lab was brazenly just not informing the people in any sense of "inform."

Even if one doesn't have a pro-life view of the nature of the embryo, there are about five different things one can do with extra embryos: Destroy them, donate them to science, freeze them indefinitely, keep implanting them oneself, or donate them to someone else for implantation. It is *entirely* plausible that a husband and wife won't have the same ideas about what to do with ten extra embryos, with all those choices. Even if one just looks at the embryos as "valuable property about which a decision has to be made with multiple options, some of them expensive, many of them contentious" the possibilities for controversy are pretty much endless. It would probably be legally risky to bestow ten *cows* jointly upon a couple as a result of a medical procedure without informing them that this would be the result of the procedure, much less ten embryos.

So I just don't think the lab would leave that out. I think they stuck it in somewhere in something the couple signed and didn't notice.

Matthew, that's horrible! Who could have imagined such a thing? The outrage to decency this manifests is shocking: any half-way moral community would rise up en masse against an official trying to pull this. That's the sort of thing that used to lead to tar and feathering.

I would think the LGBT activists will be thrilled if the court takes this case. That alone would indicate the court is ready for another landmark "gay rights" case. Making sexual orientation a protected status federally is the next big goal after all.

I would hope that even the LBXTGNQZFWs would worry about Trump putting a second judge on the SC before a case was heard and decided. Not that Trump himself is at all reliable on the question of rights for GNQPRTXLBKs, but it's one area where the he may be willing to choose originalists even if they don't have the same attitude toward the issue that he does. Is it wrong for me to pray that several SC justices either kick the bucket or decide to retire? Or get cashiered? Or are forced to recuse themselves on edgy cases?

Or are forced to recuse themselves on edgy cases?

They can't be forced. What's-her-name (was it Sotomayer?) should have recused herself on Obergefell after officiating at a homosexual "wedding," but she didn't.

I don't mean "forced" in the legal sense, but by pressure from outside: in a PR sense, for example. I don't know if Trump could make a "you should recuse yourself" claim stick, but at least it couldn't be hidden by the media.

It is quite something how one sided the court ruled in the Barronelle case. They threw out the act/orientation distinction by saying "same sex marriage" is fundamental to a homosexual orientation. Yet they had no problems affirming an act/belief distinction. So Barronelle is free to believe but not free to act on what she believes. I get this is not the first time a court has come to these conclusions, but it never gets any less bizarre. Even disregarding the Constitution explicitly mentions religion and not sexual orientation, it is a fact that Christianity forbids acting like "same sex marriage" is marriage. Barronelle's choice to not act really is fundamental to her beliefs. Whereas there are no facts, no evidence, nor reason to support a claim that "same sex marriage" is fundamentally linked to a "homosexual orientation".

As far as I know, post Obergefell, the only thing being said to be fundamental to marriage in law is same sex conduct. One could be charitable and assume the judges if they had the chance would say opposite sex conduct is equally fundamental. Of course, assuming they believe in just one institution of marriage both cannot be fundamental. More amusingly, wouldn't saying so also be met with cries of homophobia? I can't imagine the PC crowd being OK with it being said that marriage is fundamental to a "heterosexual orientation".

On another note, if I recall correctly, WLAD came before legal recognition of "same sex marriage" in Washington. WLAD contains exemptions for religious groups, which of course the judges used against Barronelle. They basically said that this shows the legislature did not intend any exemptions for people in Barronelle's position. My understanding is that just like with Elane in New Mexico the legal recognition of "same sex marriage" was irrelevant. WLAD effectively implemented "same sex marriage" on its own even if the legislature had no idea that's what they were doing.

Actually, I'm pretty certain he does. Cryo-preserving them all this time presumably isn't free, and I would assume it would be his expense or his and his wife's, as they had a choice what to do with them. Unless that was covered by the original IVF fee.

I was, to be entirely frank, assuming that they weren't charging him something extra. Sure, if they said "surprise, here are extra embryos, now pay," that would be different. Although since he wasn't legally obligated to pay to have them preserved, it's still not clear a court would regard those as losses caused by the clinic.

I had been under the impression that fully informed consent is something medical practitioners worry about quite a lot because of potential lawsuits.

Medical practitioners care about informed consent because of medical battery claims. But here, what the clinic did with the eggs after withdrawing them didn't change what they did to the wife. So she likely couldn't say that she had been battered do to any lack of informed consent, because what the clinic did to her would have been just the same if they had not planned to fertilize extra eggs. For that claim to succeed, you have to show that the doctor didn't tell you (a) what he was going to do to you or (b) what the reasonably foreseeable range of outcomes from the operation itself was.

Suppose that ... his wife ... wanted to have more babies than he did. ... And suppose that the courts awarded her custody, the embryos were implanted, some survived, and he ended up with child support payments.

Sure, we can change the facts to create a claim. I don't say that to be a jerk, but we are throwing additional facts in here that materially change the analysis. If that happened, a court might look back at the clinic and say that it had an obligation to inform the couple that it was going to create extra embryos and that the couple could elect to have them preserved, and that its failure to do so was wrongful and contributed to this particular injury.

But a court would never hypothesize that this might happen and allow him to sue the clinic before it did. That would be purely speculative.

Of course, as you note, it's likely they did sign something to this effect.

But a court would never hypothesize that this might happen and allow him to sue the clinic before it did. That would be purely speculative.

Sure, but the clinic's lawyers should (if they're smart) be thinking about all of those types of possible scenarios, since there *are* cases on record of custody disputes over embryos, and that could easily happen and create a lawsuit to a client (the clinic). And therefore saying, "Look, you need to put this in the language that they sign that they understand they will have up to x number of additional embryos that they will be responsible to decide what to do with."

In the case at hand, there has been a divorce. It would be interesting to find out whether he thinks the existence of the extra embryos had anything to do with that. If he could plausibly claim that it broke up his marriage, that would be an injury in itself.

"This raises the following macabre thought experiment: If prostitution is legalized in a venue that has specially protected status for "sexual orientation," can a prostitute be fined for refusing to have sex with would-be clients of the same sex? Makes your head spin, doesn't it?"

In many states it already is the case that a wedding photographer who refused to take photos of two men or two women romantically kissing each other will face fines, and based on the type of cases that have been decided so far probably very very steep fines. I know that is not nearly as macabre as being forced to have sex, but it still pretty disgusting to be forced to not just see two men or two women romantically kiss each other but to be the person who helps them pose and tells them when to kiss in order to best capture the moment.

Have you heard about Gary Suttles discrimination lawsuit? He is suing for hostile workplace for being required to watch a pro LGBT video.

https://www.washingtonpost.com/news/morning-mix/wp/2017/02/21/after-refusing-to-watch-lgbt-diversity-video-social-security-judge-sues-to-avoid-being-fired/

Here's to hoping he gets some success. I tend to doubt it, but stranger things have happened. There's no doubt that the LTXKNVQs are creating hostile work environments - that's their objective. They want everyone scared to death of saying anything that MIGHT be taken as offending them.

@ DR84 & Tony: I just got done reading the assigned chapter in my clinical interviewing text (for my MSW program). For examples, the author tends to single out social workers who are male and/or Christian, using them to show either incompetence or discriminatory actions.

One example showed a male, though filled with good intentions, being culturally incompetent when greeting a young Pakistani woman (handshakes are seen as rude based on religion).

In couple of others he used Christians. The first to show how open-minded a male Christian social worker was when deciding to consult a young bisexual man who was thinking of exploring the furry culture; the social worker did not refer him to another due to his sexuality or his curiosity of furries. The second example was more severe. The social worker, also a lay minister in a Greek Orthodox church, had issues with the potential of consulting married couples thinking of divorce. Since he believed in the sanctity of marriage this was hard for him. He talked to his supervisor about referring them to another social worker to which he suggested ethical bracketing. I quote, "Peter was provided with extra training and resources, and with process couples can use to accomplish an amicable divorce. Further, his supervisor engaged in role plays with him in which Peter practiced using nondirective problem-solving procedures with clients seeking separation and divorce. Finally, to help him deepen his empathy for individuals who feel compelled to divorce, Peter was assigned to attend five sessions of a divorce support group." He now felt competent. Ethical bracketing came in when Peter offered marriage strength courses to the community.

I believe author's belief is if you are having issues dealing with a certain situation (divorce, abortion, contraception, LGBT - which he frequently uses as examples) you lack empathy. If you just developed empathy for X group you'll understand and therefore feel compelled to "check your values at the door" as the author states. Peter develops empathy for couples seeking divorce via sitting in on divorce support groups; Peter now understands the turmoil they're facing and, despite his belief in the sanctity of marriage, has no issue to help couple divorce due to empathy. Empathy. Where did I (we) hear this before? Oh yes, same-sex mirage.

Wow, GRA, thanks for the details. I have heard of this sort of thing before, but usually in generic terms, so it is nice to be able to paint in the outlines with color.

And boy is it intolerant and un-diverse. It's funny how people who insist on tolerance and diversity can't see how they construct their own limits to that, and then they get to attack everyone who doesn't live according to THEIR sense of tolerance or "empathy". One man's empathy is another man's sin, (either that of cooperation with evil, or scandal, or both).