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#278: The 2018 Recap

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This is mark Joseph “young” blog entry #278, on the subject of The 2018 Recap.

A year ago I continued a tradition of recapitulating in the most sketchy of fashions everything I had published over the previous year, in mark Joseph “young” web log post #219:  A 2017 Retrospective.  I am back to continue that tradition, as briefly as reasonable.  Some of that brevity will be achieved by referencing index pages, other collections of links to articles and installments.

For example, on the second of January, the same day I published that retrospective here, I also posted another chapter in the series of Multiverser novels, at which point we were at the twenty-third chapter of the fourth book, Spy Verses (which contains one hundred forty-seven short chapters).  We had just published the first of seven behind-the-writings web log posts looking at the writing process, but all of that is indexed at that link.  Also on that same day the Christian Gamers Guild released the second installment of the new series Faith in Play, but all of those articles along with all the articles in the RPG-ology series are listed, briefly described, and linked (along with other excellent articles from other members of the guild) in the just-published Thirteen Months in Review on their site.  That saves recapping here two dozen more titles in the realms of Bible/theology and gaming, many of them excellent.  It should also be mentioned that six days a week I post to the Chaplain’s Bible study list, finishing Revelation probably early next week, and posting “Musings” on Fridays.

Spy Verses wrapped up in October, and was followed by the release of an expansion of Multiverser Novel Support Pages, updated character sheets through the end of that book, and by the end of that month we had begun publishing, several chapters per week, Garden of Versers, which is still going as I write this.

Now would probably be a good time to mention that all of that writing is free to read, supported by reader contributions–that means you–through Patreon or PayPal Me.  If you’ve been following and enjoying any of those series, your encouragement and support through those means goes a long way to keeping them going, along with much else that has been written–and although that may be the bulk of what was written, there is still much else.

Since on January 10th the first of the year’s web log posts on law and politics appeared, we’ll cover those next.

#220:  The Right to Repair presents the new New Jersey law requiring manufacturers of consumer electronics to provide schematics, parts, and tools to owners at reasonable prices, so that those with some knowledge in the field can troubleshoot and repair their own cell phones and other electronics, and none of us need be at the mercy of price-gouging company stores.

#221:  Silence on the Lesbian Front addressed the ramifications of a Supreme Court decision not to hear a case against a Mississippi law permitting merchants to decline wedding services to homosexual weddings.

#222:  The Range War Explodes:  Interstate Water Rights arose at the Supreme Court level when Florida claimed Georgia was using too much of the water that should flow downstream to it.

#225:  Give Me Your Poor talks about our immigrant history, the illusion that it was entirely altruistic, and the question of what we do going forward.

#229:  A Challenge to Winner-Take-All in the Electoral College looks at a federal lawsuit claiming that the standard electoral college election system violates the one-person-one-vote rule.

#230:  No Womb No Say? challenges the notion that men should not have a say in abortion law.

#231:  Benefits of Free-Range Parenting discusses the recent idea that parents who do not closely monitor their kids are not being negligent.

#241:  Deportation of Dangerous Felons considers the Supreme Court case which decided that the law permitting deportation of immigrants for “aggravated felonies” is too vague.

#247:  The Homosexual Wedding Cake Case examines in some detail the decision that protected a baker from legal action against him for refusing service to a homosexual couple, based primarily on the prejudicial language of the lower court decision.

#251:  Voter Unregistration Law examined a somewhat complicated case upholding a law that permits removal of non-responsive voters from the registration lists.

#253:  Political Messages at Polling Places presented the decision that non-specific political clothing and such cannot be banned from polling places.

#255:  On Sveen:  Divorcees, Check Your Beneficiaries examined a convoluted probate case in which a law passed subsequent to a divorce dictated how life insurance policy assets should be distributed.

#259:  Saying No to Public Employee Union Agency Fees is the case the unions feared, in which they were stripped of their ability to charge non-members fees for representation.

#261:  A Small Victory for Pro-Life Advocates hinged on free speech and a California law compelling crisis pregnancy centers to post notices that the state provides free and low-cost abortions.

#270:  New Jersey’s 2018 Election Ballot was the first of two parts on the election in our state, #271:  New Jersey’s 2018 Election Results providing the second part.

#274:  Close Races and Third Parties arose in part from the fact that one of our congressional districts was undecided for several days, and in part from the fact that Maine has enacted a new experimental system which benefits third parties by having voters rank all candidates in order of preference.

One post that not only bridges the space between religion and politics but explains why the two cannot really be separated should be mentioned, #224:  Religious Politics.

My practice of late has been to put my book reviews on Goodreads, and you’ll find quite a few there, but for several reasons I included #223:  In re:  Full Moon Rising, by T. M. Becker as a web log post.  I also copied information from a series of Facebook posts about books I recommended into #263:  The Ten Book Cover Challenge.

There were a few entries in time travel, mostly posted to the Temporal Anomalies section of the site, including Temporal Anomalies in Synchronicity, which is pretty good once you understand what it really is; Temporal Anomalies in Paradox, which is a remarkably convoluted action-packed time travel story; Temporal Anomalies in O Homen Do Futuro a.k.a. The Man From the Future, a wonderfully clever Brazilian film in which the time traveler has to fix what he tried to fix, interacting with himself in the past; and Temporal Anomalies in Abby Sen, an Indian film that is ultimately pretty dull but not without some interesting ideas.

In the miscellaneous realm, we had #227:  Toward Better Subtitles suggesting how to improve the closed captioning on television shows; #228:  Applying the Rules of Grammar encourages writers to understand the rules and the reasons for them before breaking them; and #273:  Maintaining Fictional Character Records gives some details of my way of keeping character information consistent from book to book.

This year we also began a subseries on the roots of Christian Contemporary and Rock Music, starting with #232:  Larry Norman, Visitor in March, and continuing with

  1. #234:  Flip Sides of Ralph Carmichael
  2. #236:  Reign of The Imperials
  3. #238:  Love Song by Love Song
  4. #240:  Should Have Been a Friend of Paul Clark
  5. #242:  Disciple Andraé Crouch
  6. #244:  Missed the Archers
  7. #246:  The Secular Radio Hits
  8. #248:  The Hawkins Family
  9. #250:  Original Worship Leader Ted Sandquist
  10. #252:  Petra Means Rock
  11. #254:  Miscellaneous Early Christian Bands
  12. #256:  Harry Thomas’ Creations Come Alive
  13. #258:  British Invaders Malcolm and Alwyn
  14. #260:  Lamb and Jews for Jesus
  15. #262:  First Lady Honeytree of Christian Music
  16. #264:  How About Danny Taylor?
  17. #266:  Minstrel Barry McGuire
  18. #268:  Voice of the Second Chapter of Acts
  19. #272:  To the Bride Live
  20. #276:  Best Guitarist Phil Keaggy.

Looking at our Bible and Theology posts, the first of the year landed in the end of March, as #233:  Does Hell Exist? attempts to explore how the modern conception of hell compares with the Biblical one; #245:  Unspoken Prayer Requests finds theological problems with asking people to pray without telling them what to pray; and #267:  A Mass Revival Meeting explains what is really necessary to bring about a revival.

There were also a couple of entries related to gaming, including the republication of a lost article as #237:  Morality and Consequences:  Overlooked Roleplay Essentials–the first article I ever wrote to be published on someone else’s web site.  There was also a response to some comments made by #239:  A Departing Member of the Christian Gamers Guild, and a sort of review of a convention appearance, #249:  A 2018 AnimeNEXT Adventure.

A couple previously published pieces appeared in translation in the French edition of Places to Go, People to Be, which you can find indexed under my name there.

So that is a look at what was published online under my name this past year–a couple hundred articles, when you count all the chapters of the books (and more if you count all the Bible study posts).  In the future, well, I have a lot more to write about Christian music, I’m only getting started with Garden of Versers and have another novel, Versers Versus Versers, set up and ready to run, several Faith in Play and RPG-ology articles are in the queue (one publishes today), and there’s a study of the Gospel According to John ready to post and the Gospel According to Mark being prepared to follow it, plus some preliminary notes on Supreme Court cases, an analysis of a time travel movie that’s taking too long to finish, and more.

Again, your support through Patreon or PayPal.me helps make all of it possible.  Thank you for your support and encouragement.

Reviews

#263: The Ten Book Cover Challenge

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This is mark Joseph “young” blog entry #263, on the subject of The Ten Book Cover Challenge.

As mentioned, Jeni Heneghan tagged me in a ten-bookcover challenge on Facebook.

**1**

I’m starting my list–and I know I’m not really supposeed to say anything about the books, but that seems a bit pointless to me–with one of the books I most enjoyed in recent years, Ian Harac’s Medic.

I had previously read his The Rainbow Connection, and enjoyed that thoroughly, but I think he topped that with this one.

I am also tagging Ian Harac to take up the challenge.  The deal is for ten days post the cover of a book you “love” (take that however you wish) and name someone to do the same.

My Goodreads review is here.

Interestingly, at the time I appear to have liked Rainbow Connection better, but in retrospect Medic is the one that comes to mind.

**2**

It’s a busy day, but let me not forget my obligation to Jeni Heneghan, who challenged me to post ten book covers of books liked or something in ten days, and nominate ten people to the same task.  This time I’m going for something non-fiction, The Righteous Mind by Jonathan Haidt.

Haidt explores six facets, what I think if memory serves he calls pillars, which are the bases of our notions of “good”, and how most people in the world use all six but modern liberals use only three, and how this results in very different views of what is right.  It’s perhaps the best exploration of these ideas I have encountered.

Again, my GoodReads review is here.

And I almost forgot:  I nominate Eric Ashley.  I’ve enjoyed many of the books he sent me.

**3**

Time to post a book cover (thank you Jeni Heneghan for the invitation).  I said I would try to avoid the obvious Lewis and Tolkien titles, but this is a close friend of theirs, Charles Williams, of whose handful of wonderful books I think my favorite is still the first one I read, Descent Into Hell.

I first read this in college as a course assignment in modern fantasy/sci-fi literature, and was immediately much impressed.  It was probably two or three decades later that I found it again, along with a couple other of his titles (War in Heaven, Greater Trumps), and was not disappointed in the least.

Williams is wonderful at blurring the line between the material and the spiritual, the natural and the supernatural.  His characters interact with each other, whether alive, dead, or imaginary.  This book also gave me some very challenging concepts–such as that bearing each other’s burdens was a real active thing.

And because this book reminds me of someone else who read it in that course who also found it interesting, I’m going to tag Richard Van Norstrand to take up the challenge.  You’re not required to do so much as I do, just over the course of ten days post the covers of ten books you “love” in whatever sense, and invite someone else to do the same.  This is my third.

For what it’s worth, I’m also building a web log post from these, so once the ten have run you can expect a complete summary, largely because I hate these multiple-first-post threads when I want to know what the other posts were.

**4**

Back in the early 1970s when I was at Luther College the library had one of those books sales, clearing out old copies.  I wound up standing beside the Dean, Dr. Harm, as he examined a book clearly older than I was, and commented that it was once the classic book in apologetics.  For twenty-five cents, I figured I could afford it.

I’m about 98% certain that the cover and title page gave the name as Evidences of the Christian Religion by William Paley.  I don’t find that title on Goodreads, which apparently finds no editions more than ten years old and calls it by various names of which Evidences of Christianity is the nearest to the original.

I don’t have a review of it posted anywhere.  In fact, it was a ponderous read for a college sophomore, and when I was about three-quarters finished the aforementioned Richard Van Norstrand borrowed it and took it home, only to have his father borrow it from him, and I never saw it again.  Still, I got through the bulk of it.

This was the book in which Paley presents the teleological argument for the existence of God in its most famous form, the watch argument, that if you find a watch you deduce that there must be a watchmaker, and since the universe runs like a watch, there must be a universe maker.

I was impressed by the meticulous way in which Paley presented his argument–no leaps, no skipped steps, no assumptions that the reader will see how to get from A to D without having been told what B and C are.  Part of that no doubt is that writing in the nineteenth century (and I’ve read several other nineteenth and early twentieth century books) he did not have to compete with more concise forms of entertainment–readers expected books to be long, because otherwise they didn’t get their money’s worth.  Yet it was instructive, in that many writers, and perhaps including me, tend to make such leaps and assume the reader understands the intervening reasoning.

I keep swithering concerning who to tag next, but I think I’ll go with Nikolaj Bourguignon.  Odds are he’ll post a lot of books I can’t read (the word for someone who speaks several languages is multilingual, while one who speaks two languages is called bilingual, and one who speaks only one language is called American, and that’s pretty much me–I took French in high school, but can’t even read the French translations of my own articles at the French edition of Places to Go, People to Be).  Still, I know he’s a reader with broad interests, and that will make it interesting.

**5**

Almost forgot the book cover on this overladen day, but I’d already selected the book, Fahrenheit 451 by Ray Bradbury.

I read the book in high school as part of an English course in science fiction literature, and having more recently re-read it cited it as recently as a couple years ago.

My Goodreads review is here.

In short, this book is everything a great science fiction classic should be.  It tells a compelling story in a futuristic world while making a significant point about contemporary issues.  The primary issue here is censorship, government control of information, and while government control of information doesn’t seem like a significant concern our articles in recent years on freedom of speech might suggest otherwise.

I’m going to invite Rick Maus to play next, because he was in that class and as I mentioned somewhere else in my writing was a member of that Great Meditators Society decades ago (he probably doesn’t even remember it), and it might be interesting to see what books he’s been reading.  The invite is to post ten book covers in ten days (it does not require saying anything about them other than implicitly that these are books you in some sense “love”–that part is just my inability to keep silent) and nominate ten people along the way to do the same.

I’m also adding a tag to the current location of the Freedom of Expression series in which Bradbury is mentioned.

**6**

Again with acknowledgement that Jeni Heneghan invited me to participate in this, let’s do the next book cover.  I know I promised not to clutter the list with C. S. Lewis–undoubtedly my favorite author, and I could name easily a dozen from A Horse and His Boy to Perelandra to Mere Christianity to The Great Divorce, but I’m going to go with God in the Dock.

My Goodreads review is here.

The book is a collection of essays and letters previously published in many sources covering a wide variety of subjects, and arguing them intelligently.  You might not always agree with Lewis, but if you haven’t read his arguments you can’t really effectively defend your own positions.

I’ve been meaning to tag Edward Jones to invite him to play.  The game is, post ten covers over ten days of books you “love” in whatever sense you want to take that; it is not required that you say anything about them (I just do, because, well, you know me, I have to talk about stuff).  You are also supposed to invite someone else to do the same each day.  No obligation, of course, but I’m interested in what books you would pick.

(We actually have a copy of a book here that we bought for you some years back and haven’t had the chance to gift.  Maybe if it sits here a bit longer I’ll read it again.)

**7**

For today’s book cover I’m stretching the meaning of the word “love” a bit.  By stretching a bit, I mean I hate this book, and I hated it when I read it–but I think it’s an important read, partly for many of its ideas, and partly because people think it says things it doesn’t.  The book is 1984 by George Orwell.

I read his Animal Farm in high school, and found it interesting and entertaining, so when I saw this book I decided it might be more of the same.

Boy, was I mistaken.  It is a bleak story with a horrible ending.

Yet it is compelling, and the world it paints is filled with concepts that are important for us to grasp–notions like doublespeak, when the words you say don’t mean what the words mean.

However, people often think that Orwell predicted the world in which we presently live.  His vision is completely wrong on the critical points.  In the world he presents, the ruling powers control all information, rewriting the records whenever they want history to be different from what it was, and it is impossible to find anything other than the party line.  In our world, the problem is reversed–we have an information explosion, and you can find everything, every position, every opinion, expressed on the Internet, with no one in control, to the point that it is often difficult to know what information is true.  No one controls it.  So Orwell was wrong.

He still tells a compelling story, and no one should cite this book who has not read it, because it doesn’t say what many people claim it says.

I’m going to tag Donald Chroniger next:  you are invited to post ten book covers of books you “love” (however you interpret that) over the next ten days, and invite one person each day to do the same.  You are not required to say anything about the book beyond identifying it.

Have fun.

**8**

This is number eight in the book cover challenge Jeni Heneghan invited me to tackle.  I’ve gone with a book by a recently deceased friend, C. J. Henderson, my favorite of his books and the first in the Teddy London series, The Things That Are Not There.

C. J. wrote a lot of Cthulu Mythos stuff, with the blessing of the Lovecraft family, and although the monster here is called Ctala it’s the same kind of being.  Rather than coming from outer space, C. J.’s unimaginable creatures come from parallel dimensions, more credible in the modern age.

The other significant difference, as he shared in our chats at Ubercon, was that whenever his characters faced these incomprehensible evil beings, he found he could not stop them from fighting back.  London in this book is hired by a girl who thinks she is being followed by something–and then the something falls through the window, and he and the office maintenance man struggle to kill it and take it to a doctor to attempt in vain to identify it.  From that point forward they discover that they are on the front line to prevent the opening of a bridge from another dimension whose chief denizen wants to devour all of humanity.  It is a tense and exciting book throughout, and I’ve read it twice and will probably read it again one day.  I’ve read the rest of the series, and although most of them are good, this is far and away the best.

I’m going to tag Harry Lambrianou, because he’s commented on a couple of these book postings so I know he’s following the series and will know what to do.

Oddly, I have no idea what book I’m going to post tomorrow, or who I’m going to tag, so it will be a surprise for all of us.

**9**

I decided on today’s book.  The copy I happen to have is actually two books in one cover, but although I’ve read the first ten or so of the series and enjoyed them all, the first book is the one I’m tagging:  Robert Lynn Asprin’s Another Fine Myth.

It comes alone or in this two-book set, or in a five-book volume (I think).  It’s a playful bit of fantasy that tells a good story while at the same time being very tongue-in-cheek about fantasy tropes.  My Goodreads review of it is here.

Looking for someone to tag, I stumble upon Dave Mattingly, who was himself a publisher for a while and even put one of my books in print, so we’ll give him the chance to pick ten covers of books he in some sense “loves”, and name ten people to do the same.

**10**

I long debated what the final book on this list of ten should be, and settled on Paul Tillich, A History of Christian Thought:  From Its Judaic and Hellenistic Origins to Existentialism.

It’s certainly not “light reading” by any stretch of the imagination, but it is an excellent source either as a text or a reference for the development of western theology and philosophy from the second century through the Enlightenment.  It gets a bit weak after that, but still covers many of the important names.  My Goodreads review is here.

I’ve got a couple of honorable mentions to post.

First, let me apologize to my (first) cousin (once removed) T. M. Becker (Writer of Young Adult Fantasy).  Her novel Full Moon Rising was truly excellent, as my web log post #223:  In re:  Full Moon Rising asserts.  Honestly, the choice tipped on the fact that I had already posted six fiction titles and only three non-fiction, and I thought that if I couldn’t balance them at least I should get closer.

Also on the “almost made it” list is F. F. Bruce, The New Testament Documents:  Are They Reliable, a classic which more people should read which also has the virtue of being relatively short.  I chose otherwise mostly because this one is a rather limited subject–an extremely important one which he handles extremely well, but still not as valuable as a reference.

I need to tag one more person, so I’m going to choose Tsiphuneah Becker, to see what sort of books she likes.  In case you’ve not been following, you are invited, without obligation, to post covers of ten books, one a day, over the next ten days.  They should be books you in some sense “love”, and you are not obligated to say anything about them.  You also are asked to post, again one per day, names of ten people to undertake the same challenge.

*****

So that’s the conclusion of the ten-bookcover challenge.  I hope you found an interesting book in that batch.

Elections, Law and Politics

#253: Political Messages at Polling Places

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This is mark Joseph “young” blog entry #253, on the subject of Political Messages at Polling Places.

You may have heard that the Supreme Court, in a 7-2 decision, struck down Minnesota’s law forbidding the wearing of anything “political” when you go to the polling place to vote.

One of the appellants was turned away from voting for wearing a shirt like this.

The case is Minnesota Voters Alliance et all. v. Mansky et al., and continuing his interest in leaving a mark on I Amendment law, Chief Justice John Roberts wrote the majority opinion.  The law is a fairly common sort, the court identifying thirty-six other states and the District of Columbia as having similar laws.  In New Jersey we have N. J. Stat. Ann. §19:34–19 Insignia at polls

19:34-19. No person shall display, sell, give or provide any political badge, button or other insignia to be worn at or within one hundred feet of the polls or within the polling place or room, on any primary, general or special election day or on any commission government election day, except the badge furnished by the county board as herein provided.

A person violating any of the provisions of this section shall be guilty of a disorderly persons offense.

It does not appear that the New Jersey law would withstand the scrutiny of this case, because of the problem the majority had with the use of the word “political”.  That word, it argued, was too broad; and when they questioned the State’s attorney at oral argument it became more problematic.  An NRA shirt would always be banned, but a Rainbow flag shirt would only be banned if there were an issue of gay rights on the ballot.  A shirt displaying the text of the I Amendment (freedom of speech, press, religion, and association) would always be permissible, but one with the text of the II Amendment (right to bear arms) would always be excluded.  Guidelines issued by the State to polling place judges did not, in the Court’s view, clarify the matter.

Justice Sotomayer dissented, joined by Justice Breyer.  Their objection could be summarized as stating that the decision is premature, that they should not have decided the case but deferred it to the Minnesota State Supreme Court.  The majority claimed that they could not imagine any interpretation of the law as written that would pass muster with its concerns, but the dissent said that in matters of state law that have not yet been interpreted by the state, it is if not normal at least common for the Supreme Court to ask the State’s highest court to provide its understanding of the law, and then determine whether that understanding passes constitutional muster.  This law has been in place for over a century, dating back to the end of the nineteenth century when polling places were often filled with hecklers and vote privacy was minimal.  Until this case (seven years ago) it has never been challenged and no one had been prosecuted for violating it, nor had anyone been refused the right to vote.  It probably has been applied reasonably, even if the Supreme Court doesn’t know how, and an opinion from the State courts would have been an appropriate step before striking down such a long-established statute.

There’s a solid argument there, but the majority apparently didn’t believe the State court could provide a viable response and didn’t wish to delay the matter.

Thus there is a good chance that whatever rule your state has regarding wearing political messages to the polling place has just been ruled unconstitutional.

Law and Politics

#247: The Homosexual Wedding Cake Case

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This is mark Joseph “young” blog entry #247, on the subject of The Homosexual Wedding Cake Case.

The case, as decided by the United States Supreme Court, is MASTERPIECE CAKESHOP, LTD., ET AL. v. COLORADO CIVIL RIGHTS COMMISSION ET AL., 584 U. S. ____ (2018), and it is one which I, at least, have eagerly anticipated.  It is the case in which the baker was convicted of violating the civil rights of a gay couple by refusing to design a wedding cake for them, on the grounds that it was an artistic expression which violated his rights of freedom of speech and religion.  It had been expected to help find the point at which religious objections to homosexuality would or would not stand against legal rights of homosexuals, although it does not seem to have done so.

The media has called this a “narrow” decision, and many have asked how it can be “narrow” if it is a 7-2 vote.  The narrowness is entirely in what was decided.  Virtually nothing concerning the balance between religious freedom and homosexual rights is solved by this case, which in its majority opinion decided only that the Colorado Civil Rights Commission seriously violated the protected religious freedom of the baker, Jack Phillips, and so its ruling could not stand.  It observed that in Colorado in the year these events occurred such a refusal was reasonably understood to be legal, although it might not be so now (because Colorado had not legitimized homosexual marriage at that time and has since done so).  However, the case is a slap in the face of progressivist atheists who want to force the opinions of religious conservatives out of the political and commercial arenas.

Justice Kennedy delivered the opinion of the court, joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch–six votes for the majority opinion.  Justice Thomas filed an opinion concurring in part and concurring in the judgment, which gives seven votes for overturning the Colorado decision, and Justice Ginsberg dissented, joined by Justice Sotomayer–but the splintering went beyond that, as Justice Kagan wrote a concurring opinion in which Justice Breyer joined, and Justice Gorsuch wrote a concurring opinion in which Justice Alito joined, so we have five written opinions on the matter, and a very small sliver of agreement on the issues.

Justice Kennedy begins by clarifying that in all matters in which religious liberty is at issue, the State is required to be a neutral arbiter showing a respectful attitude for the expressed religious beliefs of the parties involved.  It is certainly possible that a businessman might be compelled to provide services to which he objects, provided that the law is religiously neutral and does not directly attack his beliefs.  The problem in the Masterpiece case is that far from neutrality there was evident animosity toward religion.  In the first hearing, one of the commissioners said that Phillips can believe “what he wants to believe” but cannot act on those beliefs “if he decides to do business in the state.”  The same commissioner restated that view moments later, according to the record, saying “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.”  At the next hearing, a different commissioner was recorded saying

I would also like to reiterate what we said in the hearing or the last meeting.  Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be–I mean, we–we can list hundreds of situations where freedom of religion has been used to justify discrimination.  And to me it is one of the most despicable pieces of rhetoric that people can use to–to use their religion to hurt others.

Kennedy noted that this twice disparages the baker’s religious beliefs, first by calling them “despicable”, and again by claiming they are mere rhetoric having no substance or sincerity.  None of the other commissioners present objected to these statements, and they were never repudiated in the record that included appeals courts in Colorado and an appeal to the Supreme Court.

Yet if we think this is just rhetoric, that somehow the expression of such hostility toward the baker’s religious views did not indicate judicial bias against him, Kennedy goes beyond this to observe that the same commission during the same period of time considered three other cases in which bakers who declined to make cakes for specific groups were cleared of any wrongdoing based on their claim that it would have compelled them to make statements they regarded offensive.  In all three cases, the bakers had been asked to make cakes expressing anti-homosexual views, and refused to do so.  The commission in those cases concluded that the bakers could not be compelled to express opinions they considered offensive.  In this case, however, the commission claimed that the opinion expressed on the cake would be attributed to the purchasers of the cake, not the baker, and so his speech was not protected.  Further, in the other cases the commission said that the fact that these bakers were willing to sell other products to the customers absolved them of the charge of refusing to do business with those customers, but in this case they said that Phillips’ willingness to sell birthday cakes, cupcakes, cookies, even shower cakes, was irrelevant given his refusal to make a wedding cake for them.  The lower court, it was noted, dealt with this in a footnote, to the effect that the cakes requested in the other cases would have required expressing offensive statements, but the one in this case did not–which, as Kennedy notes, is passing judgment on the religious values of the baker by declaring that what he finds offensive is not offensive.

Thus the case that Phillips’ won is in essence that his religious views were mistreated by the judicial process, which should have accorded them greater respect–particularly as the commission for the protection of civil rights in this case is also charged with protecting the civil rights of religious groups.  The point is made that this case says nothing about how such cases might be decided in the future, but that the religious views and liberties of individuals involved must be respected and treated impartially by the government.

So, what about all those other opinions?

Justice Kagan makes the point that the decision is limited specifically because it is based on the express bias of the adjudicators.  She asserts that the commission could have treated the religion issue respectfully and impartially and still reached the same result, and that the other cases can be distinguished on the basis that the bakers would not have made cakes with those messages for any customer, but Masterpiece would have made wedding cakes for heterosexual customers.

It is a slim distinction, which Gorsuch rejects in his concurring opinion.  He first notes that when religious rights are threatened by legal action, strict scrutiny applies–the government has a heavy burden to prove complete neutrality in regard to religion in the case.  He is satisfied that the majority opinion reaches that result.  As to the cake, Gorsuch agrees with the baker in distinguishing a heterosexual wedding cake from a homosexual wedding cake, against Kagan’s view that a wedding cake is a wedding cake, and the distinction is prejudicial against the customer.  Yet Kagan asserts that requiring a baker to make an anti-homosexual cake with messages the baker finds offensive is something that baker would not do for anyone, and thus distinct–but in this case, she is making a distinction where in the other case she is generalizing.  That is, the baker is being asked to make a cake with a message written on it, and if the message is not an expression of the baker’s beliefs he cannot discriminate based on the message.  If a baker can say he will make a cake with the message, “Congratulations on your fiftieth wedding anniversary and enjoy your cruise” but he won’t make a cake with the message “Homosexual perverts will not possess God’s kingdom”, he is discriminating based on his own beliefs, making one message cake for one customer but not making another message cake for another customer.

Before Gorsuch explores this he notes that the commission changed its legal standards between the two kinds of cases.  In both cases, the persons most likely to purchase the type of cake in question were members of a protected class.  In the case in which the commission agreed with the bakers that the message was offensive, they said that there had to be a showing of actual animus toward the class for the charge to stand; in the case in which they disagreed with the baker’s views, they said that such animus could be presumed by the recognition of the effect on the protected class.

Justice Thomas agrees with the court in its assessment of the religious prejudice, but he asserts that the baker’s freedom of speech is also impinged in this case.  He notes that the Colorado Court of Appeals agreed that Phillips’ work was expressive, crafting individual wedding cakes for customers, meeting with the couple and working to express them in the artistic project that is their cake.  He demonstrates that a wedding cake itself is a communication that a marriage is occurring.  Ultimately, he holds that freedom of speech must allow persons to refuse to create anything that expresses endorsement of a view with which they disagree, even if it is a culturally favored view.

Justice Ginsburg disagrees.  She says that notwithstanding Phillips’ claims, most observers would not recognize a wedding cake as expressing a message, and certainly not a message from the baker.  She says that the evidence of bias is insufficient and there is no significant hostility toward religion here.  She then makes the same argument made by Kagan, that a wedding cake is a wedding cake, which as has been shown is flawed.

In conclusion, the case does rule that religious opinion, including specifically Christian opinion that homosexual marriage is immoral, is protected and should be treated with respect.  It does not rule that Christian bakers can en masse refuse to make cakes for homosexual weddings, but that if they do so any legal action taken against them must be adjudicated impartially and with respect for the religious views of the bakers.  Depending on the circumstances, the baker might still be compelled to make such a cake or punished for refusing to do so.

The conflict continues.

Law and Politics, Logic and Reasoning

#230: No Womb No Say?

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This is mark Joseph “young” blog entry #230, on the subject of No Womb No Say?.

I read an excellent article by the President of Care Net, Roland C. Warren (pictured), addressing the question of how men who oppose abortion should respond to women who say that because they are incapable of becoming pregant they have no right to an opinion on the subject.  Warren provides an excellent response, including first that those who use this argument want to include the opinions of men who agree with them but exclude opinions of men who oppose them (and in so doing agree with other women), and second that there are many issues on which people who are not directly affected still deserve to express opinions because we are indirectly affected.  However, I felt that there was a very strong argument that he missed.

Let me be clear that, as I have previously expressed, men are not on equal footing with women once there is an unintended pregnancy; women have all the advantages.  I note that I have never met a woman who was sent to jail for failing to pay child support for an unwanted pregnancy, but have known several men for whom it has happened and others who lost drivers licenses and went into hiding because they were unemployed and that’s a sure ticket to jail.  Even if abortion were off the table, women would still have more options than men under current law.

Certainly men could say that.  Yet I think there is a much more potent argument.  I would ask whether men are permitted to have an opinion about vaginal rape.

I certainly think that vaginal rape is wrong, and I think it ought to be a crime.  That’s not because of some sort of medieval ownership of women notion; it’s because, as I said in the other article, “anyone who has been raped has had rights fundamentally violated, quite apart from the problem of potential pregnancy.”  The fact that I do not have a vagina should not mean I’m not permitted to have an opinion on the subject.

I recognize therein that the fact that my position against vaginal rape is my opinion means that others might have a contrary opinion.  We have previously noted that the Marquis de Sade believed that rape was a correct and morally praiseworthy act, because nature made men stronger than women and it is therefore right that men exercise that strength against women.  He managed to persuade some women to believe that as well, apparently.  That there exists a minority who honestly believes rape is good does not mean that the majority of us cannot express our opinion against it and based on that opinion enact and enforce laws against it.  Perpetrators of rape might think we ought not be entitled to our opinion, but victims and potential victims are likely to appreciate our support.

Part of that lies in the fact that the opinion that vaginal rape is wrong and therefore ought to be criminal is an opinion that defends a usually weaker victim against the assaults of a usually stronger attacker.  We generally applaud those who come to the defense of the weak, even if they only do so by words and the support of public policies and laws.

Yet when it comes to the question of abortion, those of us who would defend the weaker party against the attacks of the stronger are told it is not our business.  If the accidental but capable mother decides she wishes to kill the completely defenseless unborn child, the opinion of someone else supporting that defenseless child should not be considered relevant.

Yet if the powerful and cunning rapist decides he wishes to ravage the weaker almost defenseless woman, suddenly an opinion in defense of the woman matters.

Go figure.

Bible and Theology, Law and Politics

#224: Religious Politics

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This is mark Joseph “young” blog entry #224, on the subject of Religious Politics.

There’s something of a flap at the moment in the world where religion and politics intersect.  It seems that Jerry Falwell, Jr. (pictured), has made the comment that Jesus and the New Testament church never tried to tell the government how to run the world, they just focused on saving souls.  The inference drawn (I will not claim to know his intent) is that people should keep their religion out of their politics.  It’s a bit ironic, really, since Falwell’s father was co-founder, with Cal Thomas, of the organization calling itself The Moral Majority (which some argued was not actually either, but that’s not the point here), which particularly in the 1970s attempted with some success to exert influence to bring the political sphere in line with what it perceived as Christian ideals.

Certainly there is an important principle in American government that religious institutions should be isolated from government, unregulated and unimpeded by each other, uninvolved in each other.  However, the notion that religion should not influence government suffers from two major misunderstandings.

(Official White House Photo by Shealah Craighead)

The first is simple, but apparently not obvious:  politics and religion are, at the core, the same thing.  They are both about how you believe the world actually is, and what the best way to live within it would be.  They are both fundamentally non-rational, that is, what we might call super-rational, structures of beliefs based on what have been called “pillars” of “moral intuition”.  We hold political positions because we believe that certain principles are “right”, whether caring for the needs of the downtrodden and persecuted, defending the freedoms of individuals, or arranging for an equitable outcome in the economic world.  Jonathan Haidt does an excellent job of explaining these moral concepts in his book The Righteous Mind: Why Good People are Divided by Politics and Religion (which I review and discuss here).  Both are protected by the First Amendment to the United States Constitution, as part of really one fundamental right:  the right to believe what you do, express and promote those beliefs, and associate with others to discuss them.  You can’t separate politics from religion because politics is religion.

Atheists reject that notion, so we should probably consider it further.  If you were an Odinite who believed that Father Odin created the Aryan people to dominate the world before entering the afterlife and using their practiced combat prowess to defend Gladsheim against the giants at Ragnarok, you would promote the position that the government should create opportunities for young men to learn to fight and conquer other countries.  If you are a Hindu believing in the transmigration of souls, you are going to work to defend not only the lives of people everywhere but a peaceful coexistence with animal life from cattle to cockroaches.  These are not at that point irrational actions or decisions; they are perfectly rational choices based on an embraced understanding of the fundamental nature of the world.  Atheists believe there is no god, but in the main they believe that there are binding moral principles, that some things are right and others wrong, and that government ought to promote right conduct and discourage wrong conduct.  That is not different from religious belief.  It is still about how we understand the world and what we think should happen in it.

So if politics and religion are really fundamentally two different words for what people believe about reality, it becomes inherently impossible for a person to separate the two.  If you think separating politics from religion is simple, you fail to understand what they are.

The other flaw in the reasoning that Christianity should not try to manipulate government because it did not attempt to do so in the first century is that this is not the first century and we are not living in the Roman Empire.  Most of us are living in republics of one sort or another, nations in which democratic principles choose the goverment and determine the laws.

In Rome, Caesar was the government.  In America, we are.

Sure, I’m not Donald Trump or Barrack Obama; I’m not the Speaker of the House or the Senate President or the Chief Justice of the Supreme Court.  I’m not even the mayor of my small town (and having known the son of the mayor of a small town, it is not a job I want).  However, whether or not I voted for them, whether or not I voted at all, those people hold those offices because we chose them, and that means I by my contribution for or against am partly responsible for that choice.  I am the government; you are the government.  We have the responsibility to govern ourselves, and to govern each other.

We don’t agree how to do that.  That’s par for the course–when did you ever agree with anyone about everything?  But we discuss our options, give our preferences, and in doing so we bring our values–our politically and religiously based values–into the decision-making process.

My political science professors at Evangelical Christian Gordon College years ago made the point that it did not matter whether or not a candidate for office was a Christian, in the sense of claiming a Christian faith or being a member of a recognized Christian church.  What mattered was whether a candidate stood for political principles consistent with the Christian faith and a Christian view of how to govern.  The person himself could be Jewish, or Muslim, or Hindu, or even Atheist.  He could have a deplorable private life, and be selfish and cruel in his personal relationships.  What matters ultimately is that what drives his choices in governing is principles supporting a more Christian world, and whether he is politically effective, capable of leading.

I’m not in the least bit interested in discussing whether our current leaders are such people.  We could spend years just trying to come to some kind of agreement concerning what Christian principles of government are, and how to balance things like equity and kindness and freedom.  I am only saying that religious people are inherently going to bring their religiously-based views about reality, their political views, into these discussions, and that’s part of the democratic political process.  You can’t keep religion out of politics without keeping values out of politics, and once you remove values from politics you have nothing left.

Bible and Theology, Law and Politics, Logic and Reasoning

#221: Silence on the Lesbian Front

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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.

Bible and Theology, Books by the Author, Elections, Games, Law and Politics, Logic and Reasoning, Music, Temporal Anomalies/Time Travel, Time Travel Movies

#219: A 2017 Retrospective

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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.

Bible and Theology, Law and Politics

#196: A Church and State Playground

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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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Law and Politics

#194: Slanting in Favor of Free Speech

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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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