Tag Archives: Discrimination

#200: Confederates

This is mark Joseph “young” blog entry #200, on the subject of Confederates.

General Robert E. Lee–perhaps the most recognized name on the Confederate side of the American Civil War–never owned a slave.  He did marry into the Custis family, descendents of Martha Washington and heirs of the estates of George Washington, some of which had slaves, but he was not an owner.

I mention this because there is a great deal of misunderstanding about the Civil War and about the Confederacy in particular.  To hear the scuttlebutt, all Confederates were bigoted racists and all northerners enlightened equalitarians.  Neither of those claims is true, nor is it true that the war was about slavery–slavery was a bit more than incidental, but ultimately a side issue.  Yet today people are fighting over flags and statues that were part of that history, trying to remove them and in the process erase an important part of our history that is relevant today to matters that have nothing to do with race or bigotry.

Between the ratification of the United States Constitution and the initiation of the Civil War there was a lingering unanswered question concerning the exact nature of this “more perfect union” the document was intended to create.  To citizens in every State, the State was a State–New Jersey had the same status as Denmark, Pennsylvania as France–and these individual independent countries had joined a treaty organization, something like NATO or the United Nations or the European Economic Community.  We came to each other’s aid for the common defense, agreed not to place tarriffs against imports and exports between each other, and met together to create laws on which we generally agreed that would bind all of us and were necessary to promote trade and interaction between us.

Yet lingering in the background of all this was what we might call the Federalist question.  Federalists like James Madison saw the central government as having ultimate authority over the state governments, that whatever was stated as Federal law was binding on all the member states.  Democrats like Thomas Jefferson saw the individual states as the ultimate authorities, lending their authority to the Federal government for the better functioning of the whole.  The Constitution did not decide that issue; had it done so, it would not have been ratified.

Abraham Lincoln, a Republican, believed in the Federalist vision of a united nation, a single country governed from a central authority.  He also happened to believe that slavery was wrong, but it was an incidental which he strongly downplayed during the campaign, promising that he would seek no law regarding slavery during his first term of office.  The majorities in northern states wanted the country more united.  The north was becoming highly industrial, building transportation networks, turning into a tightly knit unit in which business was done between Boston and Chicago more easily than ever before, and a unified legal system was to the benefit of such a system.  The south was still an agrarian society, separated by muddy roads and driven economically by the field production of cotton and other cash crops.  To northerners, Massachusetts was becoming a piece in a larger puzzle of tight-knit countries more and more connected to each other.  To southerners, Alabama was an independent country that signed a mutual defense and trade treaty with a bunch of other distant countries.

The fear southerners had of Lincoln was not really that he would end slavery–he had little chance and no intention of doing that any time soon.  It was that he would move the union more toward the central government model preferred by the north and strip the powers of the individual member countries in the process.  We see the same kinds of conflicts in Europe as they begin to adopt unified currency and banking regulations.  So when this icon of unification was elected, states that wanted to maintain autonomy seceded, and the remaining states decided that was not something they could do under the terms of the treaty, leading to a war to decide whether the Federal Government or the State Government had ultimate authority.

Of course, the elephant in the room was the one difference that had been a conflict between north and south for generations, that the southern economy was built on a slavery model and many northerners found this immoral–not that they believed blacks were any more human than the southerners believed, but that they were more on the order of animal rights activists trying to protect an exploited creature.  Because of the ongoing balance of slave and free states in the Senate, there was no real chance of meaningful legislation on that subject–but a tightening of the concept of Federalism would mean that unified laws would gradually come into being, and that was a threat.

So the question over which we fought the Civil War for five long bloody years was whether a member State of these United States had the authority to ignore Federal Law if it wished to enforce its own policies instead.  Then it was an entirely theoretical matter, as there were no Federal laws to enforce against the rebelling states, but the answer to the question turned out to be no, once you are a member of this union you are bound by Federal law, which trumps State law when they conflict.

So what the Confederates were defending, although they could not have known it, was the right of California to ignore Federal Immigration Law; and the right of Colorado to ignore Federal Drug Law.  The answer we were given then is no, Federal Law is enforceable within the member States, and the States cannot contradict it with their own laws.

So it seems to me that at least some people who are calling for the removal of Confederate markers and Confederate history actually favor that for which those Confederate soldiers fought and died–the right of states to pass laws and enforce policies contrary to those of the Federal government.

It had nothing, really, to do with slavery or bigotry.  It had to do with questions we are still facing today.  Instead of tearing down reminders of history for wrong reasons and ignorance of their significance, let’s try to gain from them the lessons of the past for the future.

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#196: A Church and State Playground

This is mark Joseph “young” blog entry #196, on the subject of A Church and State Playground.

Back in the winter we noted, in web log post #158:  Show Me Religious Freedom, that the United States Supreme Court was going to decide a case concerning whether a church-affiliated school could be denied participation in a public welfare program simply because it was sponsored by a religious institution.  That decision has been reached, in Trinity Lutheran Church of Columbia, Inc. v. Carol S. Comer, Director, Missouri Department of Natural Resources, 582 U.S. ___ (2017), and the majority opinion is very like what we previously suggested, but there are three concurring opinions that quibble on the details and one dissent that is scathing, fairly well reasoned, and as long as the other four opinions combined.

Chief Justice Roberts delivered the opinion of the court, joined in full by Justices Kennedy, Alito, and Kagan; Justices Thomas and Gorsuch also joined the opinion, with the exclusion of “footnote 3”, and each of them filed a concurring opinion, and joined in supporting each other’s concurring opinion.  Justice Breyer filed an opinion concurring in the judgement.  It is Justice Sotamayer who wrote the lengthy dissent, in which Justice Ginsburg joined.

To recount briefly, Missouri runs a program which provides funding to resurface playgrounds with recycled tires.  There is a tax on new tire purchases which funds the collection and recycling of discarded tires, converting these into a “pour-in-place” durable soft surface which reduces injuries on playgrounds.  The application process for determining eligibility to receive such a “grant” examines many factors including the economic circumstances of the area, the public use of the playground, and more.  On a list of forty-four applicants, the school ranked fifth, but did not receive one of the fourteen grants because it was affiliated with a religious institution, and the department had a policy of refusing to provide money to any religiously-affiliated institution, consistent with the Missouri State Constitution Article I, Section 7, which we quoted in the previous article.  This led to a court battle over whether the State, by refusing to permit a religiously-affiliated school from participating in a program that provided aid for non-religious programs, had violated the Free Exercise Clause of the First Amendment, by making eligibility for a public assistance program dependent on renouncing a religious belief or association.

All five opinions discuss the balance between the Free Exercise Clause, that the government cannot interfere with someone’s beliefs, and the Establishment Clause, that the government cannot support one set of beliefs over another.  Neither clause is exactly absolute.  For example, it is agreed that the Establishment Clause does not mean that the publicly-funded fire department can’t put out a burning church or synagogue, or that the police won’t investigate a theft of church property.  The Free Exercise Clause has also been tested, and laws have been overturned which prevented ordained ministers from serving in elected public office, on the grounds that such laws forced a person to choose between his religious beliefs expressed in his vocation and his right as a citizen to run for office.

A lot of the discussion on both sides concerned the previous case Locke v. Davey, 540 U. S. 712 (2004).  In Locke, the State of Washington ran a post-secondary education scholarship program based on outstanding scholastic achievement, but with a specific clause stating that the scholarship money could not be used for ministerial training.  The student claimed that the program was a violation of the Free Exercise Clause, but the Court held that under the Establishent Clause the State could refuse to fund ministerial training, particularly given that the program did not exclude schools which offered such courses or the courses themselves, only a degree program of that nature.  They have always maintained that there was some space between the two clauses, in which States were not compelled by either to act in a particular way; the question was whether in this case the state was forced to act one way or the other, or was free to act as it chose.

The majority felt that this case was more like McDaniel v. Paty, 435 U. S. 618 (1978), in which ordained ministers were barred from seeking election to public office, and the Court held that this amounted to denying a citizen a fundamental right available to all citizens (running for public office) based solely on religious belief.  The playground was not part of a religious training program, but a part of ordinary educational aid made available broadly to the community, and the church had been excluded from the program solely because it was a church, having a religious purpose in its existence.  The denial of the right to participate in the program was a violation of the Free Exercise Clause, because it required the church to choose between abandoning its religious faith and participating in a common government welfare program designed for the protection of children.  A significant part of the decision can summarized in the Court’s words

…denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest “of the highest order.”

Under such “strict scrutiny” the policy failed.

To some degree, the concurring opinions have to do with footnote 3, which reads

This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.

Justice Thomas expressed the view that Locke failed to apply strict scrutiny to the facts in that case, and ought to be overturned–but that that was not a question before the court at this time.  However, he thought footnote 3 too limiting, and deferred to Justice Gorsuch’ concurring opinion for that.

Justice Gorsuch says that the Court makes an indefensible distinction between religious status and religious use, and so distinguishes Locke from the present case.  He makes the point thus, comparing the two cases:

Is it a religious group that built the playground?  Or did a group build the playground so it might be used to advance a religious mission?….was it a student who wanted a vocational degree in religion?  or was it a religious student who wanted the necessary education for his chosen vocation?

The only justification for the decision in Locke, in Gorsuch’ view, is the “long tradition against the use of public funds for training of the clergy”.  As to footnote 3, he feared it would be misconstrued as saying that the principles on which this decision was based do not apply outside very narrow fact sets, which he thought was incorrect.

Justice Breyer put the emphasis on the fact that the program involved was intended “to secure or to improve the health and safety of children” and was in that sense not different from other public welfare programs such as police and fire protection.  He did not want to extend the decision too far, but thought in this case it was a clear violation of the Free Exercise Clause, and that for programs akin to this the fact that the applicant was a religious school should not exclude it.

Interestingly, none of these opinions declared that the Missouri Constitution’s Article I section 7 was unconstitutional; the majority opinion merely stated that as interpreted by the Missouri Supreme Court it ran afoul of the Free Exercise Clause, and so would have to be understood differently in the future.

Justice Sotamayer’s dissent is long, involved, and pointed.

Her most cogent point is that the church identifies the school as part of its ministry, intended to build the foundations of Christian faith in its students, whether children of church members or others from the community.  We have established that States can refuse to pay scholarships for ministerial training.  It is reasonable to conclude that the State can refuse to pay for Bibles, Korans, Torahs, as well as vestments, chalices, sacramental elements.  Arguably the doors, windows, roofs, and walls of church buildings are part of the ministry.  We would not use government money to pay for such acoutrements, because they are in a sense part of the ministry.

Yet it is clear that this is not so.

In the wake of Hurricane Sandy, it was established the Federal Flood Insurance and Disaster Relief could be used to rebuild damaged churches, as long as it was distributed even-handedly–that is, not favoring any particular religion.  So government money can be used for repairing physical plant of religious buildings.

Further, the National School Lunch Act provides discounted and free lunches to students in private and parochial schools without regard for the religious nature of the school, because lunch is neutral and it would be discriminatory against the religious choices of these families to exclude them from an otherwise neutral benefit because they are attending a religious private school.

So on the one hand we ask ourselves whether the playground is part of the ministry of the church, and in a sense it is, but in the same sense that the lunchroom is part of the ministry of the church.  Indeed, from the perspective of the Christian faith, every congregant is an extension of the ministry of the church, and yet we know that people cannot be excluded from government assistance programs simply because they are members of a faith which regards all of its members as ministers.  The government cannot avoid giving money to church ministries, as the church understands them, because whenever money is given to people who belong to the church, it is aiding the ministry of the church.

And on the other hand, we ask ourselves to what degree the support of the playground is supporting the religious mission of the church.  In many states it is a requirement that schools include a physical education program, and although Trinity’s school is essentially preschool the playground may be necessary to their certification–that is, if all schools must have some kind of playground for physical activity, then the playground is clearly meeting a secular, a non-religious, requirement.  Stating that it is a part of the ministry of the church certainly calls the matter into question, but seen in perspective, the answer should be obvious, that state money given to religious institutions for secular purposes such as meals and playgrounds are not a violation of the Establishment Clause, and might well be required, as the majority observes, under the Free Exercise clause.

None of this touches the deeper problem, that the language in the Missouri State Constitution is Blaine Amendment language, which as we observed was inserted for essentially religious (anti-Catholic) purposes.  However, since no party addressed this, that issue remains for the future.

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#194: Slanting in Favor of Free Speech

This is mark Joseph “young” blog entry #194, on the subject of Slanting in Favor of Free Speech.

In January we looked at a trademark case that had much to do with freedom of speech and offensive language, in web log post #156:  A New Slant on Offensive Trademarks, in which Simon Shiao Tam named his all-Asian rock band “The Slants”, saying he wanted to use the normally derogatory word to reclaim some pride for his people.  The Patent and Trademark office, relying on the same law against offensive trademarks under which the Redskins sports franchise was stripped of its protection, refused the application, and it was ultimately appealed to the United States Supreme Court.  The Court has delivered its opinion in Matal v. Tam, 582 U.S. ___ (2017), and it has implications for freedom of expression.

The Slants performing April 16th at The Flying Dog Brewery, hosted by the 1st Amendment Society

On a related subject, freedom of speech was also behind Packingham v. North Carolina, 582 U.S. ___ (2017), which struck down a North Carolina law barring anyone on the state’s sex offenders list from accessing Internet social networking sites.  We’ll look at that after Tam.

There was really nothing at all surprising about the Tam opinion, unless it is that once again eight members of the court were in agreement.  Justice Alito wrote the majority opinion, joined by Chief Justice Roberts and Justices Thomas and Breyer.  Justice Kennedy wrote a concurring opinion, joined by Justices Ginsberg, Sotomayer, and Kagan, and Justice Thomas also wrote a concurring opinion.  All of them agreed on the essentials:  the so-called “disparagement clause” in U.S. trademark law which permits the denial of trademarks for anything that might be offensive to specific groups or persons is an unconstitutional infringement on free speech.

As Justice Alito puts it (slip opinion at 22), “Giving offense is a viewpoint,” then (slip opinion at 22-23) quoting from Street v. New York, 394 U.S. 576, 592 (1969), “…the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”  Justice Holmes and Ray Bradbury would be pleased.

It’s good news, too, for the Redskins football franchise:  this was the rule that got them stripped of trademark protection, and so their ongoing legal battle is probably about to be rapidly resolved.  I don’t know if we’ll see a run on offensive trademarks in the near future–after all, as some in this discussion have observed, offending potential customers is not a good way to sell them your product.  On the other hand, the way is open for people to denigrate a lot of groups.  (The decision does not impact the prohibition against using the name of a living person without that person’s permission.)

So, how does the Packingham case fit?

In 2002 petitioner Packingham, then twenty-one years old, had sex with a thirteen-year-old girl, and pleaded guilty to “taking indecent liberties with a child”, a crime that qualifies under North Carolina law as “an offense against a minor” requiring registration as a sex offender.  The status can last three decades or longer.

In 2008, the state passed a law making it a felony for anyone registered as a sex offender in the state “to access a commercial social networking Web site where the sex offender knows that the site permits children to become members or to create or maintain personal Web pages.”

It strikes me that this is a second punishment.  That is, at the time Packingham was convicted and sentenced, and required to register, there was no law regarding the use of the Internet.  Six years later this restriction was added to his sentence, without so much as a hearing to determine whether it was necessary.  That, though, was not the issue before the court, although Justice Kennedy recognizes the problem in passing.  It is also not stated that Packingham was informed of the new restriction, but that was not before the court either.

In 2010, eight years after his conviction, Packingham expressed his thanks to Jesus for an event in his life, the dismissal of traffic ticket without a hearing, posting this excitement on Facebook.  A Durham police officer managed to connect the Facebook post to the dismissed ticket, and obtaining a search warrant established that Packingham had violated the law.  He was convicted, despite making a motion that the law was a violation of his First Amendment right to free speech.  There was no allegation that his Internet communications were in any way suspect or criminal other than that this law forbad him from making them at all.

The conviction flip-flopped its way through the state courts, overturned by the Court of Appeals of North Carolina, reinstated by the North Carolina Supreme Court, not without dissent.  The United States Supreme Court reversed the conviction and struck down the law.

Again we have an effectively unanimous judgement:  Justice Kennedy wrote the opinion of the court, joined by Justices Ginsberg, Breyer, Sotamayor, and Kagan, while Justice Alito wrote a concurring opinion joined by Chief Justice Roberts and Justice Thomas.  Justice Gorsuch did not participate in the decision, not having been present for oral arguments.

Justice Kennedy’s core point was that the Internet generally, and social media sites in particular, had become the new medium for many kinds of protected speech–obtaining news, expressing political opinions, communicating with others.  It had in essence become the public parks and town squares of old, the place where people gather to interact.  To refuse someone access to the Web would be to curtail their ability to communicate in the modern age.  That is clearly a limitation on freedom of speech, and as such must face scrutiny–the level of scrutiny in which there must be a demonstrable compelling government interest addressed in the least invasive way possible.  The protection of children from sexual predators is so strong a government interest that it might be possible to restrict the freedoms of potential recidivists, but the North Carolina law goes too far.

The concurring opinion agrees that the North Carolina law goes too far, but objects to the court’s identification of social networking sites as having the importance suggested.  Rather, Alito would suggest that it might be possible to prevent sex offenders from accessing many sites where predators might easily prey on children, but the definition of such sites would have to be refined–tellingly, Alito notes that Amazon, The Washington Post, and WebMD all qualify as “social networking sites” under the definition in the statute, and that perhaps the majority of web sites now do, as they provide ways for visitors to communicate with each other through comments on articles, and frequently to create a member profile.  (The other two requirements in the statute are that they provide some sort of revenue stream to their owners and do not exist primarily to facilitate sales between users (e.g., E-Bay, Craig’s List).)

In any case, it appears that the Supreme Court has decided that your Facebook, Twitter, and LinkedIn accounts (they are specifically mentioned) are important protected media for the exercise of your free speech.  That means something.

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#192: Updating the Bible’s Gender Language

This is mark Joseph “young” blog entry #192, on the subject of Updating the Bible’s Gender Language.

The Southern Baptist Convention, presently the largest Protestant denomination in the United States, created a bit of a stir when it announced that it would be working to update the gender language in the Bible.  Among those outside the church who post on article reaction forums, there were two general types of reactions, the one that it didn’t really matter what one did with texts that were written millennia ago by ignorant peasants and repeatedly altered since, the other that it made no sense to claim that something was a communication from God but that it could be revised by people.

The former group might be excused their ignorance in a field in which many ridiculous notions have been promulgated as if they were true, among them this notion that the writers of the Bible were all ignorant uneducated peasants.  That status was so rare among Biblical authors that the Prophet Amos makes a point of asserting it about himself, as a difference between him and all the other prophets.  As to the New Testament writers, they were generally educated members of the middle class–a tax assessor, a son of wealthy parents, a medical doctor, the owner of a business large enough that he was able to leave it in the hands of subordinates for several years and return to find it still profitable.  Indeed, Paul was a rabbinic scholar, trained by Rabban Gamaliel I, who is one of the scholars whose teaching is included in the Talmud.  They were not ignorant peasants.  As to the alleged alterations of the text, our scientific textual critics have established the original text of the New Testament to within ninety-nine-point-nine percent using sources dating into the first century; very few “intentional” changes were ever made, and those which were were obvious and easily restored.

However, the latter group has a point, which is based on a very subtle misunderstanding of exactly what the Bible is and how we regard the Bibles we read.

The problem is that the Bible is not written in English; it’s written largely in Hebrew, Greek, and Aramaic (which is a language closely related to Hebrew commonly spoken by Jews in the New Testament age).  When we read English translations of the Bible, we are reading the best renderings of those original texts which translators thought they could produce–but it means that decisions are made regarding the best way to represent the ideas in our language.  Dr. J. Edwin Orr spoke of a man telling a story through a translator.  The speaker said, “My friend was tickled to death.”  The confused native translator told the audience, “I do not understand this myself; his friend scratched himself until he died.”  Translations can be tricky.  And on the subject of gender, four things should be noted about Greek to English translation that will illustrate the overall problem.

The first is the use of the word anthropos.  It means “man”, and it is a masculine word.  (Gender of words is also one of these four things.)  However, there is another word for man, andros, and the words are different.  Anthropos means man in the general sense, the way we use the word “man” to refer to humanity.  In many contexts it would be better to render it “person”–but there are contexts in which it is obvious that the person or persons in question are men, that is, males.  In that sense, anthropos refers equally to men and women; andros refers to men only.  But we tend to render anthropos as “man” because we don’t usually use “human” that way, and because philosophers and theologians sometimes use the English word “person” in something of a technical sense that has nothing to do with whether you’re a human.

So it makes sense that we might want to revise our translations such that the word anthropos is not usually rendered “man” but something more generic like “person” or “human”, sometimes “humanity”.  That would be a revision of gender language that is attempting to produce a more accurate representation of the meaning of the original text.

There is another aspect particularly in Greek that creates great headaches for translators.  The word andros, “man”, has a counterpart, gune, “woman”.  The problem is that in common usage the words “husband” and “wife” were rarely used, the natives speaking of a couple as man and woman, with the sense of a man who belongs to a particular woman and a woman who belongs to a particular man.  Thus particularly in many places where we have the word gune, we are not certain whether it means “woman” or “wife”; it happens also sometimes with andros, but not as frequently.

We also have, as mentioned, the problem of the gender of words.  Anyone who has studied a Romance language (e.g., French, Spanish, Italian, Portuguese) knows that nouns in those languages have gender–they can be masculine, feminine, or neuter.  In Greek, the word anthropos is masculine, and thus adjectives and pronouns that are referential to that word must also be masculine, and we have the result that “man” is always “he”, even when it means “person” or indeed when it means “humanity”.  On the other hand, “church”, ekklesia, is feminine, and thus is always “she”.  In English, we tend to reserve masculine and feminine pronouns for people, and thus humanity and church are both “it” or sometimes “they”–although we make exceptions, sometimes personifying objects such as perhaps affectionately calling a boat or car “she”.  The problem sometimes arises that we are not certain whether a writer is referring to a woman or a feminine noun, a man or a masculine noun.  A masculine noun, such as soldier or guard, could be used of a female person, and in the Greek it would be proper for the pronoun to be masculine if its antecedent is the noun, feminine if it is the person.

Finally, there is the problem that Greek does not require the use of pronouns, and thus many statements lack any gender definition.  To understand this, perhaps an example left over in modern English from earlier forms might help.

In the present tense, “I say”, “you say”, “we say”, “they say”, but “he, she, or it says“.  If we see the form says, we know that it is third person singular.  We don’t really need the pronoun to know that, but we always use it.  In Greek, though, all verbs are conjugated for person and number, and because of this a Greek could have said, “says” and the hearer would extrapolate that some third person singular subject is the antecedent, the person or object who says.  That means that in many places where it says “he” does something or should or may or might do something, the “he” is an extrapolation of our Indo-european language, a word that we provide because we need a pronomial subject in English which is not present in the Greek.

This is a much more difficult issue to address, because it will not do to extrapolate in every instance where there is no subject “he, she, or it” says or does whatever the text indicates.  Nor will translating them to “she” or “it” make the text clearer.  Indeed, it is problematic, as there is very little way for the reader of an English translation to know whether that “he” is what the Greek says or what the translator extrapolated to make sense of the English.  Further, Greek is also an Indo-european language, and from Sanskrit to German to Portuguese it is the standard in such languages that where the gender of the subject is not determined by the gender of a noun, the feminine pronoun represents a female person, the neuter pronoun a non-person, and the masculine pronoun a person of either male or unspecified gender.  Thus even if the Greek says “he”, that does not necessarily mean that the author was excluding “she”.

Revising the gender language in the Bible is a challenging undertaking for these reasons and more.  It will not be done perfectly, and it certainly will not be done to everyone’s satisfaction.  Yet it is not as foolish a notion as it sounds.  In many places the specification of gender in the English translations is an artifact of translation, not a certain representation of what the original said.  Language and usage change over time; new translations are created to keep pace with the changes.  This may be one of them long overdue, but difficult to manage.

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#190: Praise for a Ginsberg Equal Protection Opinion

This is mark Joseph “young” blog entry #190, on the subject of Praise for a Ginsberg Equal Protection Opinion.

To read the conservative press, you would think that Justice Ruth Bader Ginsberg, in writing the majority opinion in Sessions v. Morales-Santana 582 U.S. ____ (2017), had turned her back on women’s rights and struck a blow for men.  Yet even from that reporting I could see that Ginsberg was simply staying true to her principles of equal protection (we had discussed her commitment to this previously in web log post #63:  Equal Protection When Boy Meets Girl).  Still, from the sound of it, I thought she ought to be commended for this consistency even when it seemed to go against her more feminist views.

However, unwilling to write about a court opinion I had not read, I took the time to find it and read it (link above to the official PDF), and found that it was a considerably less impressive story even than I had supposed.

I should perhaps have been tipped off by the fact that the decision was effectively unanimous–seven of nine Justices joining in the majority opinion, Justice Thomas writing a concurring opinion in which he agreed with the result but thought the equal protection language went further than necessary to reach it, and the new Justice Gorsuch not having heard oral arguments not participating in the decision.  The court did not consider it controversial.  They did, however, overturn part of the decision of the Second Circuit Federal Court of Appeals, so apparently there was a difficult issue in the matter.

It is also of some interest to us because although couched as an immigration case it ultimately proves to be a citizenship case, and we have addressed the statutes and cases involved in whether or not someone is a natural born citizen in connection with The Birther Issue when it was raised concerning President Obama, and more recently in web log post #41:  Ted Cruz and the Birther Issue.  The terms under which someone is, or is not, born an American citizen are sometimes confusing.  That was what was at issue here.

Morales-Santana was arrested in New York on a number of relatively minor charges, and the Immigration and Naturalization Service decided to deport him to the Dominican Republic, claiming that he was not a United States citizen.  That was where the story started to get interesting.  It seems that the Respondent’s father, José Morales, was an American citizen, having been born in Puerto Rico, and having lived there for almost nineteen years.  Twenty days before his nineteenth birthday he moved to the Dominican Republic to accept a job offer, and soon moved in with a native Dominican woman.  She gave birth to the Respondent, and the father immediately acknowledged paternity and shortly thereafter married the woman, making the child a member of his household.  Everyone assumed the child was an American citizen like his father.

However, the statute defining whether an unwed U.S. citizen father confers citizenship on his out-of-wedlock child specified, among other things, that the father had to have lived in the United States or its Territories or Possessions (Puerto Rico qualifies) for at least five years after reaching the age of fourteen.  José Morales, having left Puerto Rico less than a month before his nineteenth birthday, fell short of that requirement by twenty days.  Therefore he himself was a citizen, but his child, born abroad out of wedlock to a non-citizen mother, was not.

Morales-Santana, however, recognized a flaw in the law.  Had the situation been reversed–had his mother been an American citizen who bore a child out of wedlock with a non-citizen father–the statute only required that such a mother have been in residence for one year following her fourteenth birthday.  That meant, Morales-Santana argued, that women were being given a right that was being denied to men, in violation of the Equal Protection rights as understood by the United States Supreme Court.

The Second Circuit Court agreed, and decided that the citizenship conferred on children of unwed mothers ought equally to be conferred on those of unwed fathers, and stated that Morales-Santana could not be deported because he was, in fact, a United States citizen.

The government appealed, resulting in this decision.

What Ginsberg tells us is that the anomaly in the statute is the exception for unwed mothers.  The five year rule applies in all other related cases–not only unwed fathers, but married couples in which either spouse is an American citizen and the other is not.  If the Court were to rule that the unwed mother status applied equally to unwed fathers, it would have to rule that the same status applied in all these cases–but the legislature clearly intended that the five year rule would be the norm, and the one year rule a special exception for pregnant unmarried girls.  They would essentially be discarding the entire statute in favor of the exception.  Instead, they ruled that the one year exception was unconstitutional–a ruling whose only effect on the Respondent was that he could not claim citizenship through his father based on the inequity of a rule covering mothers but not fathers.

So Ginsberg certainly did strip some women of a statutory right, but she deserves to be credited for doing so consistently with her express view of equal protection.  Asserting that men and women should be treated the same does mean that sometimes women will be treated worse than they otherwise might have been.  This is one of those cases; it otherwise is not that important.

As a footnote, the court notes at one point that the statute asserts that a child born out of wedlock whose father acknowledges him and takes responsibility for his care will be regarded a citizen from the moment of his birth.  That is relevant to our discussion of what it means to be a natural-born citizen.

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#179: Right to Choose

This is mark Joseph “young” blog entry #179, on the subject of Right to Choose.

It made the news this past week, that a teenager in Arizona (her name is Deja Foxx, and her stated age is 16) challenged Republican Senator Jeff Flake with the statement, condensed in headlines as “Why is it your right to take away my right to choose?”

Senator Flake, Photo by Gage Skidmore
Senator Flake, Photo by Gage Skidmore

Let’s be fair to Miss Foxx.  What she actually said, according to transcripts of the town hall meeting, is

So, I’m wondering, as a Planned Parenthood patient and someone who relies on Title X, who you are clearly not, why it’s your right to take away my right to choose Planned Parenthood and to choose no-co-pay birth control, to access that.

That’s a little different, and a considerably more defensible question.  I also want to examine the more fundamental question, though, the one presented in the headlines, because that question comes up quite a bit, particularly in arguments about abortion:  why does anyone have the right to take away anyone else’s right to choose?

The first thing to say is that law is fundamentally about taking away the right to choose–or more precisely, about creating negative consequences for choosing conduct we as a society want to prevent or discourage.  You do not have the right to choose to help yourself to retail products off the shelves of a store without paying for them.  As much as you might wish to do so, you don’t have the right to kill your annoying little brother.  You don’t have the right to operate a motor vehicle on public roads while under the influence of an intoxicating substance.  You can, if you wish, choose to do any of these things; if you are caught, you will face penalties for doing them.  Whether or not you have the right to do things, in our society, is defined by the laws on which we, through our legislatures, executives, and judiciaries, agree.

So the people of Arizona who elected Senator Flake to office gave him the right to take away some of our rights, to curtail our freedoms, to put limits on what we can and cannot do.

Yet that is not quite what Foxx means.  She had prefaced her question with a tirade about how she, as an underprivileged homeless black girl trying to finish high school, was dependent on Title X (read “ten”) funding for Planned Parenthood, recently cut by a new law barring funding for any family planning center that also provides abortions.  She was fundamentally asking what right America has to refuse to pay for that; she would not have put it in those terms, but that’s the essence of the question.

There are a lot of questions we could ask in response to this.  What right does she have to expect that we are going to fund her promiscuous life choices?  When I was sixteen I did not need any funding for birth control.  I knew, and everyone I knew knew, that if you had sex you risked having children, and there were a lot of consequences to that.  There were ways to reduce the risk, but it could not be entirely eliminated.  Most of us made the intelligent choice:  we did not have sex.  If you want the privilege of making stupid choices, you should expect to bear the costs of that yourself.  If you stupidly steal from grocery stores, expect to go to jail.  If you stupidly drive while intoxicated, expect to lose your driving privileges.  If you stupidly engage in sex, expect to face the risk of pregnancy (which is clearly a risk for boys possibly even more so than for girls).

Of course, hidden in both sides of that is the fact that the new law has not terminated funding for low-cost no-co-pay birth control.  It has cut funding to organizations that fund or perform abortions.  There are other programs that provide birth control and birth control advice that do not promote abortion in the process.  Further, Planned Parenthood could continue receiving as much money as it has been receiving simply by terminating all programs related to terminating pregnancies–and in the process would have more money for the other birth control programs because none of its funds (which as we previously noted are a fungible resource) are going to those cancelled programs.  The government is not providing less money for birth control services and advice; they are only refusing to provide that money to or through those who would advise you to kill your unborn baby, and who would help pay for that.

So if the question is who has the right to decide that American taxpayer money will not be given to organizations that kill unborn babies, the answer is that American taxpayers have that right.  In fact, American taxpayers technically have the right, if we so chose, to refuse to provide any kind of support for teenager promiscuity.  It is American generosity that provides those things; Foxx has no superior right to expect them from us, whatever she thinks about supposed entitlement arising from her lack of privilege.

There is, though, the other level of all of this, the level hinted by the headline, the question Foxx was not asking but which Planned Parenthood undoubtedly wants us to hear in her question:  what right do people like Senator Flake, people like me, people like roughly half the American population plus anyone else who agrees with them, have to tell a pregnant woman that she cannot abort the preborn child she carries?  What right does anyone else in the world have to tell that woman that she does not have the right to choose whether to give birth to that child or not?

And let me agree that for millions of women, their choice of what they do with their own lives, their own bodies, is not my business.  Should they want facelifts or breast implants, stomach banding or tattoos or piercings, however they wish to improve or mutilate their own bodies, my approval or disapproval is immaterial.

However, your own body is where that right ends.  If you want to kill that annoying little brother, I think he has a right to object to that–and I think the rest of us have a responsibility to protect his right.  Indeed, if you want to kill your own annoying preschool child, that child has a right to choose to live, and we have a responsibility to intervene on behalf of that child.  Further, if that child happens still to be inside you, it has the right to choose to be alive, and we the corresponding responsibility to speak on its behalf to protect that right.  We certainly have the right to refuse to help you do it.

So ultimately the question

who gave you the right to take away my right to choose?

is one that every unborn child can ask of its mother, and of Planned Parenthood and anyone else who becomes involved in deciding that the child does not have the right to live.

Jefferson wrote that we were endowed with inalienable rights–rights that no government could take from us without just cause and due process–and the first of these is life.  They, those unborn children, have the right to choose life.  Who are you, to take that right away from them?

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#166: A Ghetto of Our Own

This is mark Joseph “young” blog entry #166, on the subject of A Ghetto of Our Own.

This is not about Christian music.  It is about race and discrimination and prejudice and segregation.  It only happens to start with Christian music.  That doesn’t mean that what it says about Christian music is not true or valuable; it only means that it’s not the point here, and if you’re not interested in the Christian music field you should read that part anyway, because it’s the example.

When I started in Contemporary Christian Music, there was no airplay for it.  The Christian radio stations in the northern parts of the United States considered The Bill Gaither Trio daring and progressive; those in the south played The Speers and Doug Oldman and other artists who were called “Southern Gospel” which meant country that sang about Jesus and avoided any of those modern rock-‘n’-roll tropes–The Imperials went too far, and particularly when they incorporated black singer Sherman Andrus in a “white” gospel band.  “Black Gospel” was also out there somewhere, but mostly in paid programming on Sunday mornings broadcast live from a local “black” church.  The dream of Christian “rock” fans was to have “our music”, Larry Norman, Love Song, Andre Crouch (although some would have niched him as “Contemporary Gospel” rather than “Contemporary Christian” or “Christian Rock”–already the fans were fragmenting) played on major secular radio stations–which in New York generally meant AM Top 40 like WABC or FM Rock like WNEW.

Denzel Washington, two-time Academy Award winner nominated again in 2017
Denzel Washington, two-time Academy Award winner nominated again in 2017

There were a lot of reasons why that wasn’t going to happen, and there is solid evidence that radio station programmers were resistant to including any songs that mentioned God or Jesus in a positive context–but then, there were other reasons as well.  I have the greatest of respect for the artists of those early years, and believe that their abilities were second to none.  However, that was an era in which successful artists in the secular field were spending hundreds of thousands of dollars to produce a record, and those amounts were not available in the Christian market.  Besides, the segregation of Christian music was already established–you never heard Southern Gospel on Country radio stations save perhaps on Sunday mornings, and stations that played Tony Randall and Frank Sinatra did not also play similar artists singing hymns.  What we got instead, the big success, was our own radio stations–mostly small stations in the suburbs who could not compete with bigger city stations in the crowded metropolitan markets looking for a niche that would create an audience and sell advertising time.  With the rise of the Jesus Movement, this was at least potentially promising, and such stations could also sell airtime to preachers in quarter-hour blocks to help cover the bills.  They began appearing in the early mid seventies.

It wasn’t only in radio that Christian artists felt excluded.  In 1969 the Gospel Music Association launched the Dove Awards, in essence Grammy Awards for Christian artists who couldn’t win real Grammies because of the perceived secular bias of the National Academy of Recording Arts and Sciences, although market share undoubtedly had a big part in that.  Since some of the record labels producing Contemporary Christian artists had also been producing (and were continuing to produce) Inspirational and Southern and Black Gospel artists, the Dove Awards soon had categories for Christian Contemporary and Rock genres.

What’s wrong with this picture?

The expression Preachin’ to the choir refers to anyone delivering a message to people who already know it and agree with you.  Politicians do it all the time:  in the main, candidates for office are not trying to persuade you to their position, they are trying to convince you that they already agree with your position so you should vote for them.  However, the Christian Contemporary music of the 1970s and 1980s was dominated by evangelistic music–songs whose focus was on persuading unbelievers to turn to Jesus–and the venues where you could hear these songs were all frequented almost exclusively by believers, people who had already embraced the message.  (This is less true today, but more in the first part than the second:  a substantial percentage of Christian Contemporary music is intended to deliver messages to believers, pastoral/worship and teaching music ministries, with only a small part being evangelistic.)

A guitarist/singer-songwriter named Mark Heard might have been the first to object to this situation in the music field.  In the early 1980s he said that in America we were creating a Christian ghetto, that we were isolating ourselves from the secular world with Christian radio stations, Christian bookstores, Christian decorations, Christian television, all of it sold to Christians and ignored by the world.  Heard took his music to Europe, where there were no Christian venues and the radio stations were all state-run, and focused on competing in the secular market there so that he could reach the secular audience.  Then-major Christian artists Pat Terry and (band) Daniel Amos supported this and followed suit, attempting to create work that would break the Christian mold.  However, there was very little crossover from Christian artists to the secular market, limited to people like Dan Peek whose first solo album had the boost in secular markets that he had been one of the principles in the Pop vocal band America, and his hit song All Things Are Possible was not so clearly a “Christian” song as others on the album.  The Oakridge Boys had managed to crossover from Southern Gospel to Country, but only by abandoning all music with a Christian message becoming effectively a secular band, and when it was announced that Contemporary Christian superstar Amy Grant would be making a secular album (from which she did put a single on the Top 40 charts) there was an explosion of controversy among Christians who did not want to support her in “abandoning her faith” (which she clearly never did despite her rocky marital history).

Part of their argument was certainly that Christians talking to each other do not thereby reach the world, but there was another aspect to it.  In creating our own ghetto, we compete with ourselves but inherently avoid competing with the rest of the world.  On one level the Dove Awards and Christian Charts are a wonderful way for Christians to recognize the accomplishments of each other.  On another level, it’s an admission that we are not good enough to compete in the world, to win Grammies or reach the top of the Top 40 chart–and possibly a decision that we are not going to try.  We give awards to the best Christian musicians, and in doing so say that we do not need to be as good as secular musicians.  We praise ourselves for being second-rate.

Perhaps now that I’ve put that forward, you can understand why it bothers me to see the racism expressed by programs like The American Black Film Festival Honors.  Blacks and Hispanics in the United States have created awards to honor people who perform well but not well enough to earn Oscars, Emmies, Grammies, Tonies, and other awards that are not racially limited.  Those who present the awards no doubt have the honest motivation of a belief that their people, “we”, are being snubbed by “them”, the people who nominate and choose the winners of those other awards.  However, this “ghettoization”, these awards that exclude anyone who is not one of “us”, screams that “we” are not good enough to win awards without excluding those “others”.  It’s like the women’s sports leagues–where there is at least some justification, in the fact that male upper body strength and greater average size give unfair advantages in many sports and co-ed contact sports can be at least uncomfortable.  Yet when Maggie Dubois says that she is the women’s champion fencer and The Great Leslie easily disarms her and responds that it would have been impressive if she had been the men’s champion fencer, it expresses an attitude inherent in sexually segregated sports:  women are not good enough to compete with men, and if they are ever to win they must exclude men from their competitions.  So, too, racially-segregated awards have inherent in them the expression of the attitude that members of this race are not good enough to compete with everyone else, and so must have their own recognition ceremonies for “us” that exclude “them”.

Such awards are definitively racist, that is, inclusive/exclusive based on race; they are excused because they favor “minority” races.  If there were an American White Film Festival award, there would be protests in the streets, but the fact that such programs as do exist favor blacks or Hispanics does not make them less racist.  Worse, they create that same kind of creative ghetto, where members of a minority group are satisfied with being good enough to win these awards that don’t require them to compete with everyone else.

Incidentally, of the twenty actor nominees for the 2017 Oscars (Best and Best Supporting Actor and Actress Motion Picture Academy Awards), six are black–thirty percent.  Given that the United States Census Bureau makes the black population of American less than half that–thirteen percent–that’s an excellent showing.  Blacks do not need their own ghetto awards.  It makes you look racist, and it makes you look inferior.  You are not the latter, and should not be the former.

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#158: Show Me Religious Freedom

This is mark Joseph “young” blog entry #158, on the subject of Show Me Religious Freedom.

It appears that Missouri has become a battleground for issues of church-state relations.  During the election we noted in web log post #126:  Equity and Religion that there was a ballot issue related to a cigarette tax to fund childhood education which included controversial language permitting such funds to go to programs sponsored by religious institutions or groups.  The measure was soundly defeated, incidently (59% to 40%), but whether that was due to opposition to the almost unnoticed clause about funding religious groups or to the near one thousand percent increase in the cigarette tax can’t be known.  The state is back in the news on the religion subject, as a lawsuit between the state and a church school is going to be heard by the United States Supreme Court this year.

The case is Trinity Lutheran Church of Columbia, Inc. v. Pauley, and SCOTUSblog nicely summarizes the issue as

Whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern.

But perhaps that will make more sense if we put some detail to it.

img0158Tires

Missouri runs a program that collects used tires and recycles them into playground surfacing material, providing schools and other facilities with a durable but softer play surface.  The program is funded by a surcharge on new tires–technically tax money dedicated to the purpose of handling scrap tires.  Trinity Lutheran Church runs a school which has a playground used by the students but also by neighborhood children.  They applied to the program to resurface that playground with the safer materials, but were refused on the grounds of a church-state issue.

Some would argue that the “separation of church and state” is on the state’s side in this, but that is not in the Constitution.  The Establishment Clause means only that the government cannot show favoritism between various religious and non-religious organizations; it can’t promote any specific religion, nor can it oppose any specific religion.  It will be argued as to whether providing playground surfacing materials to a church-run school might be promoting that church, but that is not all that is at stake.  Missouri is one of thirty-eight states which have what is known as a “Blaine Amendment”, after Maine Senator James G. Blaine who in 1875 proposed an amendment to the United States Constitution along these lines.  The Constitutional amendment proposal failed, but the majority of states adapted the concept to a variety of state constitutional amendments which were adopted and are still the law in those states.

The mindset of the nineteenth century was so very different from ours today that it is difficult to grasp.  If ever the United States was a “Christian nation” (I do not believe such an entity ever has or even can exist), it was so then.  Protestant denominations were separated from each other in friendly competition, and often worked together in evangelistic outreach; we had come through two “Great Awakenings” from which the vast majority of Americans, and particularly those who were neither Jewish nor recent immigrants (such as the Chinese in California), were Christians in Protestant churches.  However, those new immigrants–particularly the Irish and the Italians–were predominantly Roman Catholic, and Protestants still feared Catholicism, and not entirely unreasonably.  The fear arose because in countries dominated by Catholicism governments were perceived as following the dictates of the church–a fear which remained in this country until then Presidential candidate John Fitzgerald Kennedy made his September 1960 speech on the subject.  As a result, Blaine was the tip of an iceberg of an effort to prevent Catholicism from conquering America through the democratic process, perceived as in effect making the Pope our de facto emperor.  (We see similar efforts today reacting to the fear that Islamic immigrants will conquer by democratic process and impose Sharia Law on America.)

The word used was “sectarian”, and we might find that word inappropriate for its meaning.  After all, even at the dawn of the 1960s public school classes were opened with prayer and a reading from the Bible.  However, these were Protestant prayers, prayers that would have been embraced by every denomination from Episcopalian to Lutheran to Presbyterian to Baptist to Pentecostal.  They were thus viewed as non-sectarian, not preferring any one Christian denomination over any other.  Up until Pope John XXIII, Catholicism regarded all Protestants as condemned heretics (and it was more recently than that that the church has reached the position that there might be salvation outside the Roman Catholic and Eastern Orthodox churches).  That was seen as the divisive position; the Protestant’s rejection of that was not seen as divisive, because Protestants were otherwise united and respected each other’s beliefs, at least in this country.

Blaine’s effort was attempting to prevent state money from going to Catholic education (“sectarian schools”).  Missouri’s version is considerably more strict.  It reads:

That no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.

Arguably, read strictly this would prevent underpaid teachers in private religious schools from receiving food stamps or Aid to Families with Dependent Children, or prevent unemployed ordained ministers from getting welfare or social security.  No one has made that argument to this point; such programs were then not even imagined.

So this is what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The sense is that the government will not interfere with the opinions of the people, or the expression thereof.  In a sense, the government has to be “opinion blind”–it can’t decline to give food stamps to a member of the Libertarian Party, or refuse to hire someone who previously worked for a Catholic charity, or decide whether someone can speak at a public meeting based on whether he was once Boy Scout or Mason or Gideon.

It would also seem to mean that the government cannot decide that an organization cannot receive public funds for a strictly secular purpose based on whether it is a religious organization.

Let us for the moment take the name out of this case.  Let us suppose that the plaintiff is the Columbia Community School.  It happens to be run by the Columbia Community Fellowship, but is incorporated separately as an educational institution.  Thus the application for materials from the program says that the applicant is “Columbia Community School”.  The question suddenly becomes whether the people who make the decision have the right to ask whether “Columbia Community School” is a religious organization–which under our hypothetical it is, but you would not know that from the name on the application.  Would it be a violation of the first amendment for the government to inquire whether the school is a religious organization?  Two points should by raised.  One is that it is established that the playground is used by children in the neighborhood who have no connection to the school; the other is that many public and private schools rent or even lend their facilities to groups for meetings some of which use these facilities for religious worship services–a use which the courts have agreed is legitimate, and indeed that it would be unconsitutional to forbid such use solely on the basis that publicly owned properties are being used by private individuals for religious purposes on the same terms that they are being used by other organizations for other purposes.  It thus seems that it would be illegal to ask the question, and the only reason the issue exists here is that we assume an organization with the words “Trinity”, “Lutheran”, and “Church” in the name is a religious organization.  While that seems a safe assumption, it is as prejudicial as assuming that someone with the given name “Ebony” or “Tyrone” must be black.

Let us also consider this aspect of the separation of the organization from the purpose.  Brigham Young University is clearly connected to the Church of Jesus Christ of Latter Day Saints (The Mormons).  It also receives government grants for scientific research.  Should the fact that the school was founded by a religious organization for religious purposes disqualify it from receiving such monies?  If so, should the same rule apply to schools like Princeton, Harvard, Yale, and Notre Dame?  Patently it is legitimate use of government money to support academic research in secular fields, even if performed by religious persons at religious institutions.

It appears that the only sane conclusion here is that the government cannot discriminate against religious persons or institutions in the disbursement of aid for secular purposes.  We might argue that there is a fungible resources issue, that the money the church does not have to spend on playground resurfacing is money they can use for religious purposes, but ultimately the only use that this paving material has is to create safer play surfaces for children, and the only way the church can get that material is through the government program, so denying it would be making “a law respecting an establishment of religion”, clearly forbidden by the Bill of Rights.

The Blaine Amendment, at least in the form it has in Missouri, is unconstitutional.

We’ll see whether the Supreme Court agrees with that later this year.

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#156: A New Slant on Offensive Trademarks

This is mark Joseph “young” blog entry #156, on the subject of A New Slant on Offensive Trademarks.

Anyone following the Redskins trademark dispute will be interested to know that the United States Supreme Court has agreed to hear a case that is going to impact that–not the Redskins case itself, but a case close enough in its content that a Virginia federal appeals court has put the Redskins case on hold pending the outcome of the present case.

The case, Lee v. Tam, involves an American rock band whose members are all Asian, who want to trademark their band’s name, The Slants.  The U. S. Patent and Trademark Office refused to register the name on the grounds that it was disparaging of Asian Americans.  However, the Federal Appeals Court for the Federal Circuit overturned that decision, stating that it was an unconstitutional impingement on free speech, concluding that the provision under trademark law forbidding such protection of any trademark which “[c]onsists of…matter which may disparage…persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is unconstitutional on its face.

The Patent and Trademark Office has appealed, and the Obama Justice Department has supported that appeal.

The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.
The Slants performing at the 2016 Saboten Con at the Sheraton Grand Phoenix in Phoenix, Arizona, photo by Gage Skidmore.

Simon Shiao Tam, founder of the band, argues that they took the name as a way of embracing their Asian heritage, and that it neither offends those Asian Americans who are their fans nor is intended to do so.  He also points out that “slants”, while popularly used as a racial slur, has other non-racial meanings (unlike “Redskins”, “Nigger“, and similar epithets).  Still, the question isn’t whether the word can be used in an inoffensive manner, but whether the government can deny a trademark on the grounds that some might take it to be offensive.

One of the arguments raised by the government is that the State of Texas won a decision that they did not have to permit a personalized license plate design which included the Confederate Flag.  There, however, the argument was that since the plate is an official government document issuing such plates would be as if the government were endorsing the use of that flag.  It is, perhaps, a weak argument–the government cannot legally be endorsing all the organizations which apply for such plate designs, many of whom have political or religious connections–but it is weaker applied to trademarks, as the Office has repeatedly asserted that the issuance of a trademark does not indicate endorsement of what it represents.

Against the government, enforcement of the rule has been uneven.  Numerous trademarks have been issued that include racial epithets or other offensive language.  If the government wins, many of those might have to be rescinded, and might end up in litigation.

Against The Slants, there is at least some reason for enforcement of a rule against offensive trademarks.  A broad decision here could open the door to a wealth of product names far more offensive to far more groups.  A narrow decision would probably have to take the line that whether the trademark is offensive must be determined in the context of whether the audience would perceive it so.  The slogan “Bring your bitch here” is probably not offensive if it is used by a groomer or veterinary clinic, but would be so at the entrance to a bar.  However, the harder case would be whether accommodations near the Westminster Kennel Club dog show could use that slogan to let breeders and trainers know that their animals are welcome in the rooms or dining areas.  Yet the court might here find that context matters and still rule against The Slants, since the question would be whether “slants” is an offensive Asian epithet and they are an all-Asian band.

Ultimately, though, as Ray Bradbury reminded us half a century ago, everything worth writing is offensive to someone.  Any effort to censor free expression in trademarks is doomed to failure, because the issue of what is and is not offensive is too subjective to legislate.

I am inclined to think that people who register and use offensive trademarks in order to be offensive will alienate potential customers and pay an economic penalty for it.  That should be a sufficient disincentive to the practice.  Otherwise, our high courts will spend a tremendous amount of time reviewing lawsuits over whether individual trademark applications are or are not too offensive under whatever standard is adopted.

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#150: 2016 Retrospective

This is mark Joseph “young” blog entry #150, on the subject of 2016 Retrospective.

Periodically I try to look back over some period of time and review what I have published, and the end of the year is a good time to do this.  Thus before the new year begins I am offering you a reminder of articles you might have seen–or might have missed–over the past twelve months.  I am not going to recall them all.  For one thing, that would be far too many, and it in some cases will be easier to point to another location where certain categories of articles are indexed (which will appear more obvious as we progress).  For another, although we did this a year ago in web log post #34:  Happy Old Year, we also did it late in March in #70:  Writing Backwards and Forwards, when we had finished posting Verse Three, Chapter One:  The First Multiverser Novel.  So we will begin with the last third of March, and will reference some articles through indices and other sources.

I have divided articles into the categories which I thought most appropriate to them.  Many of these articles are reasonably in two or more categories–articles related to music often relate to writing, or Bible and theology; Bible and politics articles sometimes are nearly interchangeable.  I, of course, think it is all worth reading; I hope you think it at least worth considering reading.

I should also explain those odd six-digit numbers for anyone for whom they are not obvious, because they are at least non-standard.  They are YYMMDD, that is, year, month, and day of the date of publication of each article, each represented by two digits.  Thus the first one which appears, 160325, represents this year 2016, the third month March, and the twenty-fifth day.

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Let’s start with writings about writing.

There is quite a bit that should be in this category.  After all, that previous retrospective post appeared as we finished posting that first novel, and we have since posted the second, all one hundred sixty-two chapters of which are indexed in their own website section, Old Verses New.  If you’ve not read the novels, you have some catching up to do.  I also published one more behind-the-writings post on that first novel, #71:  Footnotes on Verse Three, Chapter One 160325, to cover notes unearthed in an old file on the hard drive.

Concurrent with the release of those second novel chapters there were again behind-the-writings posts, this time each covering nine consecutive chapters and hitting the web log every two weeks.  Although they are all linked from that table-of-contents page, since they are web log posts I am listing them here:  #74:  Another Novel 160421; #78:  Novel Fears 160506; #82:  Novel Developments 160519; #86:  Novel Conflicts 160602; #89:  Novel Confrontations 160623; #91:  Novel Mysteries 160707; #94:  Novel Meetings 160721; #100:  Novel Settling 160804; #104:  Novel Learning 160818; #110:  Character Redirects 160901;
#113:  Character Movements 160916;
#116:  Character Missions 160929;
#119:  Character Projects 161013;
#122:  Character Partings 161027; #128:  Character Gatherings 161110; #134:  Versers in Space 161124; #142:  Characters Unite 161208; and #148:  Characters Succeed 161222.

I have also added a Novel Support Section which at this point contains character sheets for several of the characters in the first novel and one in the second; also, if you have enjoyed reading the novels and have not seen #149:  Toward the Third Novel 161223, it is a must-read.

Also on the subject of writing, I discussed what was required for someone to be identified as an “author” in, appropriately, #72:  Being an Author 160410.  I addressed #118:  Dry Spells 161012 and how to deal with them, and gave some advice on #132:  Writing Horror 161116.  There was also one fun Multiverser story which had been at Dice Tales years ago which I revived here, #146:  Chris and the Teleporting Spaceships 161220

I struggled with where on this list to put #120:  Giving Offense 161014.  It deals with political issues of sexuality and involves a bit of theological perspective, but ultimately is about the concept of tolerance and how we handle disagreements.

It should be mentioned that not everything I write is here at M. J. Young Net; I write a bit about writing in my Goodreads book reviews.

Of course, I also wrote a fair amount of Bible and Theology material.

Part of it was apologetic, that is, discussing the reasons for belief and answers to the arguments against it.  In this category we have #73:  Authenticity of the New Testament Accounts 160413, #76:  Intelligent Simulation 160424 (specifically addressing an incongruity between denying the possibility of “Intelligent Design” while accepting that the universe might be the equivalent of a computer program), and #84:  Man-made Religion 160527 (addressing the charge that the fact all religions are different proves none are true).

Other pages are more Bible or theology questions, such as #88:  Sheep and Goats 160617, #90:  Footnotes on Guidance 160625, #121:  The Christian and the Law 161022, and #133:  Your Sunday Best 161117 (on why people dress up for church).

#114:  St. Teresa, Pedophile Priests, and Miracles 160917 is probably a bit of both, as it is a response to a criticism of Christian faith (specifically the Roman Catholic Church, but impacting all of us).

There was also a short miniseries of posts about the first chapter of Romans, the sin and punishment it presents, and how we as believers should respond.  It appeared in four parts:  #138:  The Sin of Romans I 161204, #139:  Immorality in Romans I 161205, #140:  Societal Implications of Romans I 161206, and #141:  The Solution to the Romans I Problem 161207.

Again, not everything I wrote is here.  The Faith and Gaming series and related materials including some from The Way, the Truth, and the Dice are being republished at the Christian Gamers Guild; to date, twenty-six such articles have appeared, but more are on the way including one written recently (a rules set for what I think might be a Christian game) which I debated posting here but decided to give to them as fresh content.  Meanwhile, the Chaplain’s Bible Study continues, having completed I & II Peter and now entering the last chapter of I John.

Again, some posts which are listed below as political are closely connected to principles of faith; after all, freedom of speech and freedom of religion are inextricably connected.  Also, quite a few of the music posts are also Bible or theology posts, since I have been involved in Christian music for decades.

So Music will be the next subject.

Since it is something people ask musicians, I decided to give some thought and put some words to #75:  Musical Influences 160423, the artists who have impacted my composing, arranging, and performances.

I also reached into my memories of being in radio, how it applies to being a musician and to being a writer, in #77:  Radio Activity 160427.

I wrote a miniseries about ministry and music, what it means to be a minister and how different kinds of ministries integrate music.  It began by saying not all Christian musicians are necessarily ministers in #95:  Music Ministry Disconnect 160724, and then continued with #97:  Ministry Calling 160728, #98:  What Is a Minister? 160730, #99:  Music Ministry of an Apostle 160803, #101:  Prophetic Music Ministry 160808, #102:  Music and the Evangelist Ministry 160812, #103:  Music Ministry of the Pastor 160814, #106:  The Teacher Music Ministry 160821, and
#107:  Miscellaneous Music Ministries 160824.  As something of an addendum, I posted #109:  Simple Songs 160827, a discussion of why so many currently popular songs seem to be musically very basic, and why given their purpose that is an essential feature.

In related areas, I offered #111:  A Partial History of the Audio Recording Industry 160903 explaining why recored companies are failing, #129:  Eulogy for the Record Album 161111 discussing why this is becoming a lost art form, and #147:  Traditional versus Contemporary Music 161221 on the perennial argument in churches about what kinds of songs are appropriate.

The lyrics to my song Free 161017 were added to the site, because it was referenced in one of the articles and I thought the readers should be able to find them if they wished.

There were quite a few articles about Law and Politics, although despite the fact that this was an “election year” (of course, there are elections every year, but this one was special), most of them were not really about that.  By March the Presidential race had devolved into such utter nonsense that there was little chance of making sense of it, so I stopped writing about it after talking about Ridiculous Republicans and Dizzying Democrats.

Some were, of course.  These included the self-explanatory titles #123:  The 2016 Election in New Jersey 161104, #124:  The 2016 New Jersey Public Questions 161105, #125:  My Presidential Fears 161106, and #127:  New Jersey 2016 Election Results 161109, and a few others including #126:  Equity and Religion 161107 about an argument in Missouri concerning whether it should be legal to give state money to child care and preschool services affiliated with religious groups, and #131:  The Fat Lady Sings 161114, #136:  Recounting Nonsense 161128, and #143:  A Geographical Look at the Election 161217, considering the aftermath of the election and the cries to change the outcome.

We had a number of pages connected to the new sexual revolution, including #79:  Normal Promiscuity 160507, #83:  Help!  I’m a Lesbian Trapped in a Man’s Body! 160521, and #115:  Disregarding Facts About Sexual Preference 160926.

Other topics loosely under discrimination include #87:  Spanish Ice Cream 160616 (about whether a well-known shop can refuse to take orders in languages other than English), #130:  Economics and Racism 161112 (about how and why unemployment stimulates racist attitudes), and #135:  What Racism Is 161127 (explaining why it is possible for blacks to have racist attitudes toward whites).  Several with connections to law and economics include #105:  Forced Philanthropy 160820 (taxing those with more to give to those with less), #108:  The Value of Ostentation 160826 (arguing that the purchase of expensive baubles by the rich is good for the poor), #137:  Conservative Penny-pinching 161023 (discussing spending cuts), and #145:  The New Internet Tax Law 161219 (about how Colorado has gotten around the problem of charging sales tax on Internet purchases).

A few other topics were hit, including one on freedom of speech and religion called #144:  Shutting Off the Jukebox 161218, one on scare tactics used to promote policy entitled #80:  Environmental Blackmail 160508, and one in which court decisions in recent immigration cases seem likely to impact the future of legalized marijuana, called #96:  Federal Non-enforcement 160727.

Of course Temporal Anomalies is a popular subject among the readers; the budget has been constraining of late, so we have not done the number of analyses we would like, but we did post a full analysis of Time Lapse 160402.  We also reported on #85:  Time Travel Coming on Television 160528, and tackled two related issues, #81:  The Grandfather Paradox Problem 160515 and #117:  The Prime Universe 160930.

We have a number of other posts that we’re categorizing as Logic/Miscellany, mostly because they otherwise defy categorization (or, perhaps, become categories with single items within them).  #92:  Electronic Tyranny 060708 is a response to someone’s suggestion that we need to break away from social media to get our lives back.  #93:  What Is a Friend? 060720 presents two concepts of the word, and my own preference on that.  #112:  Isn’t It Obvious? 160904 is really just a couple of real life problems with logical solutions.  I also did a product review of an old washing machine that was once new, Notes on a Maytag Centennial Washing Machine 160424.

Although it does not involve much writing, with tongue planted firmly in cheek I offer Gazebos in the Wild, a Pinterest board which posts photographs with taxonomies attempting to capture and identify these dangerous wild creatures in their natural habitats.  You would have to have heard the story of Eric and the Gazebo for that to be funny, I think.

Of course, I post on social media, but the interesting ones are on Patreon, and mostly because I include notes on projects still ahead and life issues impeding them.  As 2017 arrives, I expect to continue writing and posting–I already have two drafts, one on music and the other on breaking bad habits.  I invite your feedback.

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