Tag Archives: Freedom of Expression

#221: Silence on the Lesbian Front

This is mark Joseph “young” blog entry #221, on the subject of Silence on the Lesbian Front.

Sometimes what the Supreme Court does not say is as significant at what it does say.  There is much speculation as to why they declined to hear a suit against a Mississippi law protecting a first amendment right not to support same sex weddings and similar matters.  The lower court ruling at this point is that the plaintiffs do not have standing, that is, none of them can demonstrate that the law has caused any of them actual harm, but the question behind that is why the court didn’t want to grab the case and decide the issue.

One possibility is that no one knows how it would fall, and no one wants to risk setting a precedent against their own view.  The conservatives would undoubtedly support the law, which makes it unlawful to bring any criminal or civil penalties against someone who for religious reasons refuses to provide services in support of acts they consider immoral, and particularly homosexual weddings.  The passage of the law invalidated local laws in Jackson and other metropolitan areas of the state that had protected the supposed rights of the homosexual couples.  Meanwhile, the liberal wing wants to normalize homosexual conduct, and have the law regard treatment of homosexuals as equivalent to treatment of blacks and women.  So we have an almost even split among the justices–but that there are an odd number of justices.

The swing vote is almost certainly Chief Justice Roberts.  He has been strong on first amendment rights, but has also sided in favor of homosexual rights.  If either side were sure of his vote, they would probably have accepted the case as a way of establishing a precedent favoring that position.  It thus may be that his position is uncertain, and neither side wants to take the risk.

On the other hand, the court has agreed to hear the cake case, in which a baker claims that a state law requiring him to make wedding cakes for homosexual weddings is an infringement on his religious liberty and freedom of speech.  The speech issue seems to be the one that is carrying the most weight with the justices, but it may be that the rejection of the Mississippi case is hinting out an outcome here.  If in the cake case it were decided that a state law could compel service providers to treat homosexual weddings the same as heterosexual weddings, it would still be an open question as to whether a state law can prevent any such compulsion, and the Mississippi case would matter.  However, if the Court were to decide that the baker cannot be compelled to create a cake for a homosexual wedding, that inherently supports the Mississippi law, saying that no one can be so compelled.

So the fact that the Court did not accept the Mississippi case could mean that they are leaning toward judgement in favor of the baker in the cake case, or it could mean that the position of the court is too uncertain for them to take case on the same issue so soon.  What it does not mean is that the Court has the votes to overturn the Mississippi law and wants to do so.

#219: A 2017 Retrospective

This is mark Joseph “young” blog entry #219, on the subject of A 2017 Retrospective.

A year ago, plus a couple days, on the last day of 2016 we posted web log post #150:  2016 Retrospective.  We are a couple days into the new year but have not yet posted anything new this year, so we’ll take a look at what was posted in 2017.

Beginning “off-site”, there was a lot at the Christian Gamers Guild, as the Faith and Gaming series ran the rest of its articles.  I also launched two new monthly series there in the last month of the year, with introductory articles Faith in Play #1:  Reintroduction, continuing the theme of the Faith and Gaming series, and RPG-ology #1:  Near Redundancy, reviving some of the lost work and adding more to the Game Ideas Unlimited series of decades back.  In addition to the Faith and Gaming materials, the webmaster republished two articles from early editions of The Way, the Truth, and the Dice, the first Magic:  Essential to Faith, Essential to Fantasy from the magic symposium, and the second Real and Imaginary Violence, about the objection that role playing games might be too violent.  I also contributed a new article at the beginning of the year, A Christian Game, providing rules for a game-like activity using scripture.  Near the end of the year–the end of November, actually–I posted a review of all the articles from eighteen months there, as Overview of the Articles on the New Christian Gamers Guild Website.

That’s apart from the Chaplain’s Bible Study posts, where we finished the three Johannine epistles and Jude and have gotten about a third of the way through Revelation.  There have also been Musings posts on the weekends.

Over at Goodreads I’ve reviewed quite a few books.

Turning to the mark Joseph “young” web log, we began the year with #151:  A Musician’s Resume, giving my experience and credentials as a Christian musician.  That subject was addressed from a different direction in #163:  So You Want to Be a Christian Musician, from the advice I received from successful Christian musicians, with my own feeling about it.  Music was also the subject of #181:  Anatomy of a Songwriting Collaboration, the steps involved in creating the song Even You, with link to the recording.

We turned our New Year’s attention to the keeping of resolutions with a bit of practical advice in #152:  Breaking a Habit, my father’s techniques for quitting smoking more broadly applied.

A few of the practical ones related to driving, including #154:  The Danger of Cruise Control, presenting the hazard involved in the device and how to manage it, #155:  Driving on Ice and Snow, advice on how to do it, and #204:  When the Brakes Fail, suggesting ways to address the highly unlikely but cinematically popular problem of the brakes failing and the accelerator sticking.

In an odd esoteric turn, we discussed #153:  What Are Ghosts?, considering the possible explanations for the observed phenomena.  Unrelated, #184:  Remembering Adam Keller, gave recollections on the death of a friend.  Also not falling conveniently into a usual category, #193:  Yelling:  An Introspection, reflected on the internal impact of being the target of yelling.

Our Law and Politics articles considered several Supreme Court cases, beginning with a preliminary look at #156:  A New Slant on Offensive Trademarks, the trademark case brought by Asian rock band The Slants and how it potentially impacts trademark law.  The resolution of this case was also covered in #194:  Slanting in Favor of Free Speech, reporting the favorable outcome of The Slant’s trademark dispute, plus the Packingham case regarding laws preventing sex offenders from accessing social networking sites.

Other court cases included #158:  Show Me Religious Freedom, examining the Trinity Lutheran Church v. Pauley case in which a church school wanted to receive the benefits of a tire recycling playground resurfacing program; this was resolved and covered in #196:  A Church and State Playground, followup on the Trinity Lutheran playground paving case.  #190:  Praise for a Ginsberg Equal Protection Opinion, admires the decision in the immigration and citizenship case Morales-Santana.

We also addressed political issues with #171:  The President (of the Seventh Day Baptist Convention), noting that political terms of office are not eternal; #172:  Why Not Democracy?, a consideration of the disadvantages of a more democratic system; #175:  Climate Change Skepticism, about a middle ground between climate change extremism and climate change denial; #176:  Not Paying for Health Care, about socialized medicine costs and complications; #179:  Right to Choose, responding to the criticism that a male white Congressman should not have the right to take away the right of a female black teenager to choose Planned Parenthood as a free provider of her contraceptive services, and that aspect of taking away someone’s right to choose as applied to the unborn.

We presumed to make a suggestion #159:  To Compassion International, recommending a means for the charitable organization to continue delivering aid to impoverished children in India in the face of new legal obstacles.  We also had some words for PETA in #162:  Furry Thinking, as PETA criticized Games Workshop for putting plastic fur on its miniatures and we discuss the fundamental concepts behind human treatment of animals.

We also talked about discrimination, including discriminatory awards programs #166:  A Ghetto of Our Own, awards targeted to the best of a particular racial group, based on similar awards for Christian musicians; #207:  The Gender Identity Trap, observing that the notion that someone is a different gender on the inside than his or her sex on the outside is confusing cultural expectations with reality, and #212:  Gender Subjectivity, continuing that discussion with consideration of how someone can know that they feel like somthing they have never been.  #217:  The Sexual Harassment Scandal, addressed the recent explosion of sexual harassment allegations.

We covered the election in New Jersey with #210:  New Jersey 2017 Gubernatorial Election, giving an overview of the candidates in the race, #211:  New Jersey 2017 Ballot Questions, suggesting voting against both the library funding question and the environmental lock box question, and #214:  New Jersey 2017 Election Results, giving the general outcome in the major races for governor, state legislature, and public questions.

Related to elections, #213:  Political Fragmentation, looks at the Pew survey results on political typology.

We recalled a lesson in legislative decision-making with #182:  Emotionalism and Science, the story of Tris in flame-retardant infant clothing, and the warning against solutions that have not been considered for their other effects.  We further discussed #200:  Confederates, connecting what the Confederacy really stood for with modern issues; and #203:  Electoral College End Run, opposing the notion of bypassing the Constitutional means of selecting a President by having States pass laws assigning their Electoral Votes to the candidate who wins the national popular vote.

2017 also saw the publication of the entirety of the third Multiverser novel, For Better or Verse, along with a dozen web log posts looking behind the writing process, which are all indexed in that table of contents page.  There were also updated character papers for major and some supporting characters in the Multiverser Novel Support Pages section, and before the year ended we began releasing the fourth novel, serialized, Spy Verses, with the first of its behind-the-writings posts, #218:  Versers Resume, with individual sections for the first twenty-one chapters.

Our Bible and Theology posts included #160:  For All In Authority, discussing praying for our leaders, and protesting against them; #165:  Saints Alive, regarding statues of saints and prayers offered to them; #168:  Praying for You, my conditional offer to pray for others, in ministry or otherwise; #173:  Hospitalization Benefits, about those who prayed for my recovery; #177:  I Am Not Second, on putting ourselves last; #178:  Alive for a Reason, that we all have purpose as long as we are alive; #187:  Sacrificing Sola Fide, response to Walter Bjorck’s suggestion that it be eliminated for Christian unity; #192:  Updating the Bible’s Gender Language, in response to reactions to the Southern Baptist Convention’s promise to do so; #208:  Halloween, responding to a Facebook question regarding the Christian response to the holiday celebrations; #215:  What Forty-One Years of Marriage Really Means, reacting to Facebook applause for our anniversary with discussion of trust and forgiveness, contracts versus covenants; and #216:  Why Are You Here?, discussing the purpose of human existence.

We gave what was really advice for writers in #161:  Pseudovulgarity, about the words we don’t say and the words we say instead.

On the subject of games, I wrote about #167:  Cybergame Timing, a suggestion for improving some of those games we play on our cell phones and Facebook pages, and a loosely related post, #188:  Downward Upgrades, the problem of ever-burgeoning programs for smart phones.  I guested at a convention, and wrote of it in #189:  An AnimeNEXT 2017 Experience, reflecting on being a guest at the convention.  I consider probabilities to be a gaming issue, and so include here #195:  Probabilities in Dishwashing, calculating a problem based on cup colors.

I have promised to do more time travel; home situations have impeded my ability to watch movies not favored by my wife, but this is anticipated to change soon.  I did offer #185:  Notes on Time Travel in The Flash, considering time remnants and time wraiths in the superhero series; #199:  Time Travel Movies that Work, a brief list of time travel movies whose temporal problems are minimal; #201:  The Grandfather Paradox Solution, answering a Facebook question about what happens if a traveler accidentally causes the undoing of his own existence; and #206:  Temporal Thoughts on Colkatay Columbus, deciding that the movie in which Christopher Columbus reaches India in the twenty-first century is not a time travel film.

I launched a new set of forums, and announced them in #197:  Launching the mark Joseph “young” Forums, officially opening the forum section of the web site.  Unfortunately I announced them four days before landing in the hospital for the first of three summer hospitalizations–of the sixty-two days comprising July and August this year, I spent thirty-one of them in one or another of three hospitals, putting a serious dent in my writing time.  I have not yet managed to refocus on those forums, for which I blame my own post-surgical life complications and those of my wife, who also spent a significant stretch of time hospitalized and in post-hospitalization rehabilitation, and in extended recovery.  Again I express my gratitude for the prayers and other support of those who brought us through these difficulties, which are hopefully nearing an end.

Which is to say, I expect to offer you more in the coming year.  The fourth novel is already being posted, and a fifth Multiverser novel is being written in collaboration with a promising young author.  There are a few time travel movies available on Netflix, which I hope to be able to analyze soon.  There are a stack of intriguing Supreme Court cases for which I am trying to await the resolutions.  Your continued support as readers–and as Patreon and PayPal.me contributors–will bring these to realization.

Thank you.

#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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#169: Do Web Logs Lower the Bar?

This is mark Joseph “young” blog entry #169, on the subject of Do Web Logs Lower the Bar?.

I noticed something.

img0169Diary

I don’t know whether any of you noticed it, and there is an aspect to it that causes me to hope you did not, to suspect some of you did, and to think that I ought not be calling it to the attention of the rest.  But it is worth recognizing, I suppose, even if it is at my own expense to some degree.

What I noticed was that some of the web log posts I publish are not up the the same standard I would expect of my web pages.

Certainly it is the case that some of the web log subjects are what might be called transient.  I was quite surprised to see in my stats recently that someone visited the page that covered the 2015 election results for New Jersey.  I’m thinking it must have been a mistake.  Yet at the time it was important information, even if in another year it won’t even tell you who is in the Assembly, because we’ll have had another election.

It is also the case that being an eclectic sort of web log it is going to have pages that do not appeal to everyone–indeed, probably there are no pages that appeal to everyone.  I recently lost one of my Patreon supporters, and that saddens me, but he was the only person contributing as a time travel fan, and was not contributing enough to pay for one DVD per year; I’m sure he is disappointed that I haven’t done more time travel pages, but there has not been that much available to me and the budget has been particularly tight.  With pages about law, politics, music, Bible, games, logic problems, and other miscellany, there will certainly be pages that any particular reader would not read.  Yet that has always been true of the web site, and although the web log is not quite as conveniently divided into sections it does have navigation aids to help people find what they want.

What I mean, though, is that I don’t seem to apply the same standard to web log pages as I would to web pages.

I suppose that’s to be expected.  As I think about it, I recognize that I put a lot more time and thought into articles I am writing for e-zines and web sites that are not my own.  I expect more of myself, hold myself to a higher standard, when I am writing such pieces.  For one thing, I can’t go back and edit them later–which on my own site I will only do for obvious errors, never for content.  For another, something of mine published by someone else should represent the best that I can offer, both for my own reputation and for that of the publisher.  If you’re reading my work at RPGNet, or the Christian Gamers Guild, or The Learning Fountain, or any of the many other sites for which I’ve written over the decades, you might not know any more about me than what you find there.

It’s also the case that, frankly, anyone can set up his own web site, fairly cheaply and easily, write his own articles, and publish them for the world to ignore.  There is a limited number of opportunities for someone to write for someone else’s site, and to be asked to do so, or permitted to do so, is something of a recognition above the ordinary.

Of course, there are even fewer opportunities to write for print, and fewer now than there once were.  Not that you can’t publish your own printed books and comics and magazines, but that those that exist are selective in what they will print, and so the bar is higher.

The web log system makes it quicker and easier to write and publish something.  I suspect that there are many bloggers out there who open the software, start typing what they want to say, and hit publish, as if it were an e-mail.  I maintain a higher standard than that–all of my web log posts are composed offline, and with the only exceptions being the “breaking news” sort (like the aforementioned election results page) they all get held at least overnight, usually several days, reread and edited and tweaked until I am happy with them.  (As I write this, there are two web log posts awaiting publication which have been pending for two days, and I will review this one several times over the time that they go to press.)  But even so, the standard of what I will publish as a web log post is considerably lower than that which I will publish as a web page.

In that sense, the web log becomes more like diary, something in which you compose your thoughts and then ignore them–except that this diary is open to the world.  I think–I hope–all bloggers put more thought and care into their web log posts than they do into forum conversations and Tweets and Facebook posts.  However, while I have read some web log posts that were excellent, I have also read a few that caused me to wonder whether the author was thinking.  I try to keep some standard here, but I admit that sometimes I wonder whether I posted something because I thought it was worth posting or because I wanted to keep the blog living and active.

In any case, if you read something here and wonder why I bothered to post it, perhaps now you have a better idea of that.

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#162: Furry Thinking

This is mark Joseph “young” blog entry #162, on the subject of Furry Thinking.

If you are in the gamer community you probably have already heard or thought most of this.  Ridiculous news travels fast.  For those who are not, well, it’s worth getting you up to speed a bit.

A British company known as Games Workshop publishes a game under the name Warhammer 40K.  The “40K” part means that it is set in a far-flung (forty millennia) future in which, perhaps somewhat ridiculously, primitives fight with mechas.  The game makes significant use of miniatures, which the company produces and sells.  These miniatures are entirely made of plastic, but some of them have designs that include the image of fur clothing or covering on people or machines.

PETA, that is, People for the Ethical Treatment of Animals, is protesting this.

Image by  Erm What https://www.flickr.com/photos/ermwhat/
Image by Erm What https://www.flickr.com/photos/ermwhat/

I am tempted to join the chorus of those who assert that PETA has lost it–it being at least the last shreds of credibility that the organization had.  I would prefer to think that they are intelligent people who have sound reasons for their position, and so I would like to attempt at least to understand them.  I do not agree with them, because of what I think are some fundamental issues, but in order to discuss those issues I think it is important at least to attempt to grasp their view.

The stated issue is that the appearance of fur on the models, even given that it isn’t even faux fur but just molded plastic in a roughened pattern that looks like fur, sends a wrong message.  That in itself is a bit ridiculous–as one father of a gamer reported his daughter asking, how can PETA tell whether the plastic molding representation is supposed to be real fur or fake fur?  However, we should give PETA the benefit of the doubt.  They could reasonably object to the use of fake fur for much the same reason:  it is popular because it looks like real fur, and in looking like real fur suggests that killing animals for their fur is an appropriate human action.  People should not kill animals for fur today, and suggesting that it will be acceptable to do so forty thousand years in the future is just as unacceptable.

In its argument, PETA includes some detail about the inhumane ways in which animals are either trapped or hunted and killed, or raised and killed, for their furs.  Within the context it’s a bit ridiculous–for all we know, in the Warhammer world such furs might be grown in vats of cultured skin skin cells that have no innervation and no central nervous system, and thus no real pain.  Fur might grow on trees, genetically mutated or modified.  They might have devised completely painless methods of hunting, trapping, and killing fur-bearing animals.  Extending an argument based on the details of actual modern treatment of such animals to the distant future is indeed silly.  However, it is probably not the distant future with which PETA is concerned.  If they still exist in forty millennia they will undoubtedly argue whether any of those methods are truly humane; their real argument is not whether these are appropriate actions in the future, but whether they convey an appropriate message to the present.  Their position in the present is that it is fundamentally wrong to kill animals for their skins, and so the suggestion that it will be permissible in the distant future is a wrong message, because it always will be–and by implication, always has been–wrong for people to do this.

That is where PETA and I part company on this issue.

Somewhere I have seen, probably in some natural history museum, a montage of a group of primitive men dressed in furs using spears to bring down a Woolly Mammoth.  That display, to my mind, communicates something of the reality of the lives of our distant ancestors.  Yet if PETA is to be taken seriously, that display sends the same kind of wrong message as is sent by the Games Workshop miniatures:  humans have killed animals so as to clothe themselves in the furs, and are engaged in killing another animal.  It might even be argued in their favor that one of the theories for the disappearance of the Siberian Mammoth from the world is that it was hunted to extinction by primitive humans (although in fairness it has also been suggested that they died due to the decline of their habitat at the close of the last ice age).  Yet wearing furs and killing animals was how those humans survived, and thus the means by which we have come to be alive today.

I think that PETA would probably assert that the humans had no higher right to survive than the bears and wolves and deer and other creatures they killed for those furs, or the mammoths they hunted for meat and skin.  PETA has an egalitarian view of the creatures of the world, as I understand it:  all creatures are created equal, and have an equal claim to continued life.  People have no right to kill animals for their own purposes, whether for clothes or for food or for habitat.

One reason this view is held is that people believe there are only two possible views.  The perceived alternative is to believe that humans have no obligations at all to other creatures, and can use them however we want, kill them with impunity, torture them even for no better purpose than our own entertainment, eat them, and wear their bodies as clothing and jewelry or use it to adorn our dwellings.  Put in its extreme form, this position is indeed reprehensible, and I object to it as much as PETA does.  However, these are not the only two positions.

Still, that “reprehensible” position is at least defensible.  PETA can argue that the human species has no better right to survive than any other creatures, but it is equally true under that argument that our right to survive is not any less.  Other creatures do not, by this fundamentally naturalistic argument, owe us their lives, but neither do we owe them theirs.  If our survival is enhanced at their expense, it cannot be asserted that we have less right to survive than they.  In the abstract the claim that we do not have a higher right sounds good, but if the issue were to be whether you or I would survive, it is very likely that you would choose you, and if it went to court after the fact and it was reasonably clearly apparent that it was “you or me”, the courts would undoubtedly exonerate you for choosing your own survival over mine.  The simplest form of that is the self-defense defense, but it’s not the only situation in which this is a factor.  Our ancestors killed animals and ate them and wore their furs because in a very real sense it was “them or us”, either we kill these animals and protect ourselves in their skins or we die of exposure.  Certainly I think that killing for furs that are not needed for our survival but merely decorative is selfish, but under a naturalistic viewpoint I can find no basis for saying that it is wrong to put the needs and preferences of other creatures above our own.  Further, I would not condemn an Inuit for his sealskin boots–it is part of his survival, and it is not clear that modern boots are either as easily available to him or as effective for the purpose.

Yet I do not intend to defend that position.  I think there is a third position that covers the concerns of both PETA and the Inuit.  Man is neither the equal of the other creatures in this world nor the owner of them.  We are their caretakers; they are our charges.

That means that sometimes we have to kill them, responsibly.  The best example is the deer of North America.  In most of the continent, and particularly most of the United States, deer thrive but the predators that kept their numbers in check have been decimated.  Without wolves and mountain lions in significant numbers to kill and eat the deer, their natural reproductive rate (geared to replace those lost to predation) quickly overpopulates the environment.  Certainly we have the selfish concern that they will eat our gardens, but even without that part of the problem they will starve in droves, because there is not enough food to feed them all.  The lack of predators is our fault, but only partly intentional.  Certainly we took steps to protect our children from creatures that would recognize them as a potential meal, but it is also the case that we frighten them, and so as we expand they retreat.  That means that deer will die, and their bodies litter the wilderness–and the alternative is for us to maintain managed killing of the overpopulation.  Licensed hunting is an effective and economical approach.  There might be other ways–such as rounding up herds into slaughterhouses and selling the meat on the market–but PETA would find these at least as objectionable.

It also means that we have the right to kill them when in our view it meets our needs–such as taking cattle and pigs and fowl to slaughterhouses to put meat on our tables.

The issue of whether we should refrain from killing animals for clothing is a more complicated one.  After all, in Genesis 3:21 we are told that God made garments of skin for Adam and Eve when they were inadequately clothed in leaves, and we take that to mean that it was the skins of animals, and that thereafter we dressed ourselves in animal skins following the example God gave us.  On the other hand, we have other materials now which are at least as good, and we have a shortage of animals, at least measured against the number of people we have to clothe.  We can provide for our needs without killing a lot of animals, and so we should prioritize our responsibility to care for those we still have.  That does not mean we cannot use fur or leather as part of our clothing; it means that such use should be limited to situations in which it is the best choice for the purpose.

It also means that in a distant future in which animals, including predatory animals, are plentiful and humans are struggling to survive, our present standards about killing creatures for fur or wearing the skins of animals who died or were killed for other reasons simply do not apply.  Most of those who are intelligent enough to be able to play complicated miniatures wargames are also intelligent enough to understand this, even if PETA is not.

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#161: Pseudovulgarity

This is mark Joseph “young” blog entry #161, on the subject of Pseudovulgarity.

At an hour ridiculous by just about anyone’s standards, the dog rousted me to let him out.  A word went through my mind as I sat up.

I’d like to be able to tell you that the word was “Hallelujah”; it was not.  What I can tell you is that it was not any word that is ordinarily recognized as a curse or swear word or vulgarity.  It was, rather, one of those words made up by some science fiction or fantasy writer to give the characters foul language that doesn’t have any real meaning and so won’t be nixed by the censors–not the one used in Red Dwarf, but that sort of thing.  In fact, the words that went through my head next were, “He can curse in six imaginary languages.”  I can’t, but it is a silly notion, and raises the question of how we as Christians should regard such speech.

img0161Dwarf

Words are avoided for several reasons, and we should understand why specific words are avoided–but I am not going to delve into explanations of individual words.  Some are called “vulgar” by which we mean “crass”; they refer to objects or actions which are not discussed in “polite society” and so it would be rude to use them.

Problematically, some words which make this list have perfectly appropriate uses within certain contexts, but become offensive when they are used in an insulting way.  An expression that means being condemned to eternal punishment is probably appropriate declared from the pulpit, but not expressed as a wish aimed at an individual.  The proper word for a female dog among breeders at a kennel club show becomes vulgar when applied to a person; in its original sense it becomes obscene.

Obscenity is perhaps vulgarity up a notch:  these words usually refer to actions which decent people disdain because they are in some sense morally repugnant.  “Rape” might have been on this list except that we need a name for that crime; it will serve, though, as an example of other words which are not used because they refer to acts themselves regarded immoral.

The other category of avoided words involves the commandment not to use the name of the Lord in vain.  Here the problem is that no one should invoke God disrespectfully, and it is commonly done.  All “offensive” words are considered offensive to people, or at least to “decent” or “proper” people; those in this category are considered offensive to God, but also to people who would be offended by disrespect toward God.

Prior to the early 1970s respectable people did not use such offensive language in conversation, public or private.  This ended with the release of the transcripts of what are called the Watergate tapes, recordings of conversations in the Oval Office in the White House, in which the words “expletive deleted” probably were the most common longer than three letters.  These announced to the world that the respectable speech of our leaders was a facade covering considerably more corrupt language in private.  It is certainly ironic that Richard Nixon is still roundly condemned in nearly all quarters, but his example in this followed by so many.

This covers most of what we consider “foul language”, and most of us feel that if we manage to keep this out of our speech we have done well.  I wonder, though, whether we have.  The other day someone who uses entirely too much foul language asked me whether there was something he could say instead.  I suggested Praise the Lord; I do not know whether he has implemented an effort on this front.  I do recall a pastor friend of mine telling of a deacon in his church with Tourette’s who apparently spoke no foul words and so his expletive outbursts were all on the order of Alleluia, Amen, Praise God, and that answered a question I had had about the syndrome in people who had not learned any bad words.  Most Christians make a point not to say anything that falls into any of these categories; some don’t consider it a significant issue.

What is somewhat more intriguing is the use of substitute words.  The language is littered with them–“gosh” and “golly”, “gee” and “geesh”, and words like “heck”, “darn”, “dang”, “sugar”, “frigging”, to replace more vulgar language.  These words we use in order keep our language “clean”–but do they miss the point?

The phrase “apple-polisher” does not immediately call the image from which it is apparently derived; “brown-noser” is closer to the vulgar original, but you don’t want to think about what that one means.  The fact that we avoid the words but convey the ideas is not especially commendable.  In college I was very good at creative invective until an event I have recounted elsewhere shocked me into the realization that some people were hurt by words which to me were a game.  If what you say is intended to give offense, it is not really inoffensive to say it without offensive words.  Perhaps more fundamentally, if the use of a word reflects a bad attitude within, a replacement word to express the attitude does nothing about the attitude.

I am of the opinion that we as believers should avoid using words which offend–not merely those which are offensive to specific races or subcultures, but those which are offensive to polite society.  The use of invented vulgarity, in the form of invented words, is probably reasonable for inclusion in fiction, particularly fantasy and science fiction, to give the feeling of a real lower-class culture (I still see the use of such words as the language of the lower classes, and the fact that Nixon and his aides used it lowers my opinion of them far more than it raises my opinion of the use of such language).  In my own writing I manage to avoid most of it, and while I’m prejudiced I don’t think my prose suffers for it.

As far as substitute words in daily use, to the degree that they reflect negativity, invective, or distress, we probably should learn not to use them–not because the words themselves are bad, but because they convey attitudes which we ought to be eliminating in ourselves.  We mistakenly think that something which happens is bad because at first impression we don’t like it, but every gift from God is good, and He gives us our days and our lives.  Certainly there are people who harm us or others, and we are right to hate what they do–but that they do it tells us that they need to be repaired, need God’s love and ours to escape the darkness in which they are living.  They don’t need our foul language or our not-foul replacement language or our invective or insult or disdain.  They need our help.

So if you wondered why words of that sort mattered, maybe this will give you some notion.

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#160: For All In Authority

This is mark Joseph “young” blog entry #160, on the subject of For All In Authority.

O.K., show of hands:  how many of you have been praying for our new president?

I see that hand.

img0160Trump

No, I appreciate this.  I have never been much of one for canned uninformed “pray for the President/pray for the leaders”–I never know what to pray, and I’ve been a political writer for several years, and still don’t know what to pray.  Part of the difficulty I face is that we are told to give thanks for the answers to our petitions, but for most of what I can imagine asking I have no reason to expect to see how God has answered–I am not privy to cabinet meetings nor to the thoughts of men.  Part of the problem is that it is very easy to want God to move our leaders to my political opinion, and God does not generally do that, or at least not that I’ve recognized in others.

But I am upset about the people who have been protesting, and particularly because I know that at least some of them would take the name “Christian”.  I do not mean that Christians should never protest.  I am not even saying that Christians should never be involved in overthrowing governments–that’s simply more than I know.  However, the call we were given was to pray, not to condemn.  In a modern democracy, the proper function of protest is to communicate our opinions to our leaders, not to condemn them for theirs.  Communicate, certainly; do not condemn.

One of those who taught me along the way made the statement God gives you the person that you need, not necessarily the person that you may want.  I do not even now remember to what exact situation he was applying that, but I have recognized it in connection with spouses, pastors, and particularly governments.  (I suspect it applies as well to parents, although I was out of the house and married before I heard it; I wonder to what degree it applies to children.)  Proverbs has a verse which in the original speaks of a lot falling in a lap, an archaic concept among archaic concepts for which the Christian Gamers Guild has found a modern translation, “We may throw the dice, but the Lord determines where they fall.”  Benjamin Franklin noted that if sparrows do not fall without God’s notice, nations certainly do not rise without His aid–and that would undoubtedly apply as well to governments.  At this point we know, incontrovertibly, that God chose to make Donald Trump President of these United States.  We may debate whether that is upon us a blessing or a curse, a reward or a punishment, a path forward or an impediment to truth, but whatever it is, it is what God decided we needed.  This is God’s gift to us, what He has given.

And every gift God gives is good.

Don’t choke on that.  Understand, as I know I have said previously and elsewhere, that when the Bible says that God’s gifts are good, it does not mean necessarily that we will like them.  All things work together for good to them that love God and are called according to His purpose it says in Romans 8, but it does not mean that everything that happens to us will be pleasant.  Eat your spinach, it’s good for you–this is the kind of good Paul meant there, that whatever comes to us benefits us, whether we enjoy it or not.  Suffering produces endurance.  When Jesus says that God gives both sun and rain to the good and the bad, the righteous and the unrighteous, He did not mean that we all get good things and bad things–he meant that we get the good that is the sun and the good that is the rain.  I do not yet know whether this presidency will be steak or Brussels sprouts–the good I will enjoy or the good I need to endure–but I know that it has been given to us and it is good.

In the early days of the church, nearly all Christians lived in or near Jerusalem.  Then a terrible thing happened.  A Christian named Steven was lynched by a mob.  Instead of the rioters being brought to justice, the local ruler arrested one of the top people in the church, a man named James, and had him executed.  The persecution of believers had begun.  Many, including some of the leaders themselves, fled Jerusalem, left the province known as Judea, and sought homes elsewhere in the Roman Empire.  It was undoubtedly something they would have prayed to end, despite the fact that Jesus told them it would happen–and we see in hindsight that these fleeing believers carried the message with them into places it would not have reached nearly as quickly otherwise, so the church spread and grew as others heard the gospel and believed.  Christians had been told to take the message into the whole world, but were rather complacently sitting in the one small town (and face it, as capital cities of the time went, Jerusalem was a small one) sharing the message mostly with people who had already heard it or knew where to hear it if they were interested.  We needed that trouble to move us in the right direction.

Therefore I know what to pray.  I pray that God will give wisdom to this man and his advisors, so that they will accomplish the task God has given them in the best way possible.  I do not know what that task might be, nor do I know to what degree the answer to my prayer will involve God clearing the path for what the man wants to do and to what degree it involves God impeding that path so that only part of the human program will be accomplished.  I do know that God will accomplish His purpose, one way or another, and the current presidency is part of that.  We are instructed to pray, and not given much understanding of what to pray, but this is enough.  One way or another, this should move us in the right direction.  We might not know what the right direction is (and for those first century Christians it seems to have been every direction as long as it was motion), but we know that God is moving somewhere and will bring us where He wants us to be.

So let us pray.

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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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