Monday, March 31, 2014

Is the Social Justice Left Abandoning The First Amendment Revisited

I am going to talk about the " Religious Left " and the First Amendment hopefully later today. However I wanted to update my last post A Liberal Academic Concerned " Social Justice " Left Is Threat To First Amendment and Expression .

In that post I link a Academic from the left that has great concerns that social just folks from the left are not giving the First Amendment the attention and respect it deserves. That prompted his discussion was rather outrageous criminal conduct by a University of California, Santa Barbara Feminist Studies Prof on a pro life protester . This was conduct , to make matters worse , that she got her students involved into to some degree

 The Professor so far via her social media seems not to get what she did wrong . Now we have the University of Santa Barbara issuing a statement that leaves a lot to be desired. Free Speech advocates were not pleased . See Free Speech Advocates Unsatisfied with UC Santa Barbara Vice Chancellor’s Mixed Messages .

To say the least that the tones of the University's  response is troubling .

Returning to the Professor in the Feminist Studies Department  that seems wonder what all the fuss is about her actions, there was an interesting post on this subject at the Volokh Conspiracy .See The UC Santa Barbara Department of Feminist Studies . 

To quote a part of that post :

.....In principle, having a Department of Women’s Studies may make good sense for an academic institution. Traditional department boundaries — history, psychology, anthropology, sociology, law, and the like — are often useful, because each field has its own intellectual toolkit that is often worth teaching separately. But at the same time, the department boundaries often make it harder to effectively study a particular subject area. The role of women in society, for instance, is an important question that is raised in many different fields of study. Having a department that’s focused on that subject rather than on a particular academic discipline could be useful, though, as with all such things, it could be implemented poorly.

 But a Department of Feminist Studies, it seems to me, by definition limits itself not just to a single subject of study, but to a single ideology or closely connected bundle of ideologies. It means that the department is guaranteed to exclude faculty and even students of other ideological views. (Ideologically skewing happens to some extent in lots of contexts already, but here it seems to be baked into the definition of the department in a particular sharp way.) And it puts the university’s scholarly imprimatur on one ideology — and perhaps even just particular versions of that ideology — to the exclusion of its rivals. 

 It means that other views are automatically defined to be outside the department’s area of focus — the possibility that there are women who aren’t feminists (or who disagree with most of the modern academic feminist movement on questions such as abortion) who are worth studying and whose arguments are worth considering is defined away. Ideological homogeneity and lack of engagement with contrary views is always a danger in many human institutions. But a department of feminist studies seems to be tailored to maximize these dangers.....

I think this well put . I also wonder if this dynamic we describe here is seen various important religious faith communities in the United States. More on that in my next post


Friday, March 28, 2014

A Liberal Academic Concerned " Social Justice " Left Is Threat To First Amendment and Expression

There is no doubt that as to some core First Amendment issues such as speech and association all of us are not consistent as we might like to be. Part of this is because of the people we ally with that we considered our friends . For instance if you find the issue of LGBT  righat of paramount importance that it cries out to the heavens to be resolved ,  you might be ok with censoring a little campus speech and campus groups

On the flip side you might have certain strong feeling about sexual morality therefore you might  put some blinders on as to those that wish to punish the Univ of Tennessee for Campus Sex week . Another rather horrid example is perhaps you feel so strongly about gun rights that you might support legislation that is a huge wound on the First amendment . This happened in my State of Louisiana last year.

However I do have concerns that as to these issues that both the secular left and indeed the progressive religious left is becoming much more a danger to basic First Amendment freedoms. This is more concerning because such things as " entertainment "and media are often leftward focused. So some traditional guardians of First Amendment freedoms that raise alarm bells to the public will be AWOL .

I am going to hit the progressive " social justice " religious  folks  issue and how they play a role in all this later in another post.

An voice  of the left just brought out these concerns in two blog posts that is where worth your reading time as to what he is seeing. That is perhaps if you thought the real problem with the morality police was on the Right you might be mistaken.

See from Purdue University read Fredrik deBoer two posts is the social justice left really abandoning free speech? and an addendum on social justice and free expression .

I have to say I agree with this observations and it scares me to death  .

Next I will talk the role of the religious left in all this.

Wednesday, March 26, 2014

Hopeful Hobby Lobby Will Prevail After Supreme Court Arguments

It might seems strange to some that after posting so much the HHS contraception mandate , religious liberty , and the " Hobby Lobby case I have nothing to say yesterday. I wanted to digest the transcript and I hope to have a few posts on it this week.

I am slightly optimistic the Court will rule in  Hobby Lobby's andthe  other parties favor. Still I am little nervous . It seems it will come down to Justice Kennedy though Breyer might be in play on some important issues.

The Government 's case went as I expected. That is the weakest link being the least restrictive means part of the Religious Freedom Restoration Act test . That is can the Government provide all this birth control by some other means without violating those who are bring these RFRA claims. Even Justice Breyer asked about that .

However there were two areas that  I was thrilled the Court got into some detail with one of which might be huge for Justice Kennedy .

For these I recommend a series of post from Law Profs Ann Althouse and Josh Blackman who I think had the best interactions with the SCOTUS oral transcript.

Ann Althouse has a excellent review of yesterday's arguement here .

I dealing with a part of Justice  Kennedy  remarks that I am hoping in part delivers the day in which he said :

Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of —­­ of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

Ann Althouse comments on these remarks at some length :

This is extremely important. The topic finally becomes the role of HHS, which is making the decisions here, not Congress, and Kennedy is disturbed by the agency making some but not other exemptions. This is a problem quite apart from the RFRA claim for an exemption. There is something structurally awry about this lawmaking. Kennedy observes that the agency's exemptions were given "without reference to the policies of RFRA." So "what were the policies that you were implementing?" Churches got exemptions, and businesses with less than 50 employees got exemptions, and then there were the grandfathered plans. How do you argue a compelling interest in no exemptions when the government has made all those exemptions? Roberts badgers Verrilli about how long the grandfathered plans are going to stay grandfathered.

Law Prof Josh Blackman  had a series of post on the oral arguments yesterday.

At his his post The Non-Delegation Doctrine and the First Amendment , Prof Blackman engages more of what Justice Kennedy was thinking on this subject mentioned above :

The aspect lost in the entire Hobby Lobby debate is that Congress did not specify that employers must provide certain types of contraceptives. They required that employers provide “essential care” and delegated to HHS the responsibility for defining what drugs are included.

 HHS then specified that certain products must be provided. Initially only churches were exempt from the mandate, but after an uproar, provided a way for religious organizations, such as the Little Sisters of the Poor, to opt out of the coverage. But this was done as a political compromise. 

HHS did not assert they were required to do so under RFRA, or the First Amendment. As Justice Kennedy noted twice:

 JUSTICE KENNEDY: But you gave this exemption, according to your brief, without reference to the policies of RFRA. What ­­ what were the policies that you were implementing?

 JUSTICE KENNEDY: I still don’t understand how HHS exercised its judgment to grant the exemption to nonreligious corporations if you say it was not compelled by RFRA. 

Justice Kennedy raised the non-delegation doctrine in an interesting context–can we let administrative agencies decide the scope of the First Amendment?

 JUSTICE KENNEDY: Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of ­­ of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes.

 In other words, it may even be outside the ability of Congress to delegate this type of authority to an agency–or at the least, it must be given with some serious guidance.

I think this is a huge issue the media , that perhaps had gotten used to executive rule making run amok , has missed.

There is something downright screwy how this contraception mandate as well as other things have gone down since the ACA was passed. I thought Roberts would bring it up , but I was very pleased to see it high on the radar of Justice Kennedy himself.

The other area where I am glad Justice Breyer got involved was the whole issue of standing  to even be able to bring a claim that your RFRA or First Amendment rights have been violated .

 See Josh Blackman's post Justices Alito, Kennedy, and Breyer Pose My Hypothetical About Ban on Kosher Slaughter and RFRA .

Those that oppose Hobby Lobby position like to go Corporations have no rights they are not people. I don't think they have thought though this ,and very much intentionally ignore many  small business are in the form of a Limit Liability Corporation. In fact I think it is almost malpractice not to urge your typical small business to take this form .In most states most small business owners just download the form , send in the fee , and poof they are a corporation.

Read the whole post of Josh Blackman to see how this KOSHER hypo is based on some real world religious liberty issues.

Getting back to the issue of even being able to have your day in court , Blackman writes says in part

..Could the government’s position really be that no one–not a single incorporated butcher–could bring suit? I raised this question to a lawyer who litigates in the field of religious liberty, though in Hobby Lobby opposed allowing corporations to state a claim under RFRA and the Free Exercise. I found that he hadn’t considered this hypothetical, and would only say that individual people who eat Kosher could bring suit. But that ignores the issues of the hypothetical as posed.

I was thrilled to see Justice Alito pose just this question to General Alito during oral arguments in Hobby Lobby.

JUSTICE ALITO: What about the implications of saying that no for­ profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­ profit corporation can raise any sort of free exercise claim at all? Let me give you this example. According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane. Now, suppose Congress enacted something like that here. What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do? They would simply ­­ they would have no recourse whatsoever. They couldn’t even get a day in court. They couldn’t raise a RFRA claim. They couldn’t raise a First Amendment claim.

And the Solicitor General’s answer confirmed my suspicion. First he hinted at a Church of Lukumi analysis, but this ignored the fact that the law was truly motivated for concerns about animal welfare (which in this case trumps religious liberty).

 GENERAL VERRILLI: Well, I’m not sure they couldn’t raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don’t think it is our position that they couldn’t make a free exercise claim in that circumstance and so

JUSTICE KENNEDY: Well, but you’re getting away from the hypothetical. Say ­­ Justice Alito’s hypothetical was that the impetus for this was humane treatment of animals. There was no animus to religion at all, which in the Church animus to the religion. So hypothetical. 


Verrilli, then said that the individual customers can raise this claim.

 JUSTICE ALITO: Well, they say no animal may be slaughtered unless it’s stunned first, unless the animal is rendered unconscious before it is slaughtered. 

GENERAL VERRILLI: Well, I think in that circumstance, you would have, I think, an ability for customers to bring suit. I think you might recognize third party standing on behalf of the corporation ­­ on the corporations, on behalf of customers. So a suit like that could be brought. 

The General then changed the topic and talked about burdens on third parties. But Justice Breyer, getting irate at the General’s dodging of the question, continued the slaughter (rimshot!): 

JUSTICE BREYER: I mean, the point that Justice Alito was making is that ­­ take five Jewish or Muslim butchers and what you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the Freedom of Exercise Clause that you’d otherwise have. Now, looked at that way, I don’t think it matters whether they call themselves a corporation or whether they call themselves individuals. I mean, I think that’s the question you’re being asked, and I need to know what your response is to it. 

The General replied around the question, and basically conceded the incorporated butcher could not raise the claim:

GENERAL VERRILLI: Well, I think our response is what the Court said in Part 3 of the Lee opinion, which is that once you make a choice to go into the commercial sphere, which you certainly do when you incorporate as a for ­profit corporation, you are making a choice to live by the rules that govern you and your competitors in the commercial sphere. 

 The government’s position is loud and clear. If you are incorporated, you have no free exercise rights under the First Amendment or RFRA. Such an absolute position didn’t pan out well in Hosannah-Tabor. I don’t think it will win the day here. And what about churches and non-profits that are incorporated?

 GENERAL VERRILLI: No. No. Religious non­profits get an accommodation in which their employees get the contraception. 

But we are not drawing a line between for­profit and profit. They, again, are only given an exemption by the grace of HHS, and not by the requirements of the First Amendment or RFRA.

Again read  all his post . Blackman think Justice Breyer takes this question very serious so watch out for that.

More later on other themes of the Hobby Lobby oral argument day.

Saturday, March 22, 2014

Do Louisiana Baptists Care About Louisiana College ?

Cenlamr has a good blog post up about some rather important events that happened at Louisiana College this past week.

 See Louisiana College President Joe Aguillard’s Vainglorious (And Terrifying) Attempts To Stifle Dissent.

There is much controversy at Louisiana College and as a non Baptist I walk carefully in commenting on how a faith community runs their school. For instance there are some issues dealing with academic freedom at Louisiana College that deal with the Calvinism issue that I view as an  internal theological matter.

However Louisiana College is an asset to the State of Louisiana Baptist and non Baptist alike. Thus what appears to be an increasing  level of incompetence , mismanagement , and perhaps well lying by it's President seems to be a concern. The list of grand promises , plans , and grants  that Cenlamr list that have been made but never seem to materialize is not an exclusive one.

The question is does the average Louisiana Southern Baptist ( lay or pastor ) outside the Alexandria area seem to care. The Louisiana Southern Baptist Convention has some degree of oversight and influence over the college. Over the past few years when I have engaged Baptists over the issues at Louisiana College I just get vacant looks. There does not seem to be a connection , a sense of pride , or indeed ownership between the average Louisiana Baptist and their " State " College . This seems different than some other states.

If this disconnect is indeed widespread that probably does not fare well for the future of Louisiana College. Still it is an asset that Louisiana Baptist might want to take advantage of in the future and the need to listen to the students there seems to be becoming more compelling .

Friday, March 21, 2014

IF A Corporation Can Have Race Why Can't It Practice Religion ?

A very good article at Public Discourse . See If a Company Can Be African American, Can’t It Be Religious? The Hobby Lobby cases will be heard next week by the Supreme Court .

Saturday, March 15, 2014

Does LT Governor Jay Dardenne Have Little Choice But To File Suit Against ?

An interesting legal issue has arisen in Louisiana dealing with a wide diverse list of issues from Louisiana tourism , medicare expansion, the First Amendment , and Bobby Jindal.

At issue is is a billboard campaign that takes aim at Governor Bobby Jindal for not expanding the Medicare program in Louisiana. . The problem is that the billboard campaign pretty much just appropriates a Louisiana tourism campaign in which the State of Louisiana has spent nearly 70 million dollars on. In Louisiana one of the duties of the LT Governor is tourism and this campaign is pretty much under the direction of Lt Gov Jay Dardenne. He has filed suit.

See Louisiana sues over Bobby Jindal billboard .

Needless to say we have a First Amendment issue at stake. Under trademark law courts have under the theory of satire and parody have often sided with the defendants in these cases especially when the plantiff is a Government and/or  political actor. So from the outset it is a tough case for the LT Gov to win. Court's default position seem to be allow such parodies and many ways the burden is on the plaintiff to prove otherwise.

However as one New Orleans attorney pointed out to me this morning the Lt. Gov really has a duty to sue in this case. That is if one does not take efforts to defend your copyright or trademark you in fact might lose the right to it later. As he pointed out there is a problem of laches that Lt Jay Dardenne must deal with for instance  . If the State of Louisiana has spent 70 million dollars on this campaign then the Lt. Gov does seem to have a obligation to defend it in Court. states this lawsuit  " frivolous  " . This is not really an area of law I am familiar with , but I am not sure it is right to say this is  frivolous for various reasons.

 Here is the Lt Gov complaint that was filed in Federal Court on Friday . Among  the arguments the Lt. Governor brings ( see Section 25 ) is that under the law " parody " must deal with the authors work. The campaign deals with Jindal opposition to expanding medicare in the state of Louisiana. The Lt. Governor points out that the Jindal is in no way connected with the tourism campaign which is something that comes under his jurisdiction as an elected official. That is it can't be a parody because Jindal  cannot be in anyway seen as an author of this particular work and effort..

I find this argument at the very least legitimate and thus I don't see the suit as frivolous. Thus the Lt Governor does have a duty on behalf of Louisiana that has spent  70 million so far on campaign to protect to their proprietary interest.  Could use a campaign that promotes Louisiana fruit ( under the direction of the Sec of AG another elected office distinct from the Governor or Executive  ) to parody Jindal. What about another State organ that is acting in the stream of commerce? Could they use a  effective LSU marketing campaign to mimic Jindal on medicare .

I don't know how the Court would rule on all these issues but I expect there is some limitations.

Wednesday, March 12, 2014

The Alcoholic Priest and the Souls In Purgatory

Rod Dreher for lent is going through Dante's Purgatorio, the second book in Dante’s Divine Comedy trilogy , for Lent via his blog. He took yesterdays Canto and applied it to a interesting story from the Russian Orthodox tradition.

Friday, March 7, 2014

The Catholic Angle of the NFL Combine

I actually feel a tad in the land of the living today so I can work on my goal of blogging more during lent. I have been far more on twitter lately and I hope to devote more attention to blogging. Unlike some Catholics I am not one to take a social media fast .

Being sick today at home I had an opportunity to listen to former LSU's QB Zach Mettenberger on how INTENSE the NFL combine was . Just by chance I saw a neat little article on a Catholic angle of the NFL Combine . See NFL coaches, team officials gather for Mass, dinner and fellowship

Devout Catholic College Football Player's Career To Continue After LSU

If you have watch LSU games you might have notice the LSU player that does the kickoffs doing the sign of the cross before each kick.

 That person is James Hairston a product of the the Dallas area and a Jesuit grad. It appears he will be extending his college career at another school after graduation in order to try to do field goals. See James Hairston transferring, wants chance to kick field goals .

No matter where he goes it is a blessing that I have no doubt the witness of his Catholic faith will be a benefit to any football program and student body that has him.

See  from the Baton Rouge Catholic Newspaper LSU Tiger kicker deepens faith, gains family through team and Pre-game talks inspire LSU kicker from the Texas Catholic.

The Blessings of Good Health During Lent

Since Tuesday I have been pretty much sidelined by a nasty respiratory infection that has been going around. Bone shattering coughs , fatigue , fever , etc . My main goal since getting this nagging thing is just to do anything to do anything to halt its progression before it becomes something more serious. There has been a lot of bed rest. Needless to say my LENT is off to a slow start.

So for the first time that I can recall I could not go to Ash Wednesday services. Today my mother brought me one of my favorites round steak and rice for Lunch. My mother is not Catholic so had no idea of what my typical Lenten obligation would be as to meat. However being sick I felt exempted and I was not going to deny the effort she made to get me better. Plus at this point anything that make me eat is a priority especially if I have any hope of getting to Mass tomorrow.

All this started to make me think about the blessings of health in general and during Lent . It is a joy to be able to do voluntary prayerful sacrifices . Our fasting is of course little league compared to the Eastern Christians but it is still a beneficial practice. Also I have to admit I have felt a little but out of sync with the Church Universal and Christians from all over the world.

Social media is often a very young enterprise , and I think we are too apt to forget about those in hospitals or those that because of sickness are home bound . Liturgical seasons are important for a Catholic . Its like a cycle of life that repeats every year. Lets recall  and try to be assistance to those that for whatever reason are not able to practice the beloved  rites of their Faith to the same extent they were for decades because of health issues.

Tuesday, March 4, 2014

When Opposing Discrimination is Opposing Freedom

I am becoming more and more concerned that the use of discrimination laws are having a dangerous impact on some fundamental civil  liberties. In fact there appears to efforts in some places to use the fight against discrimination as a way to make certain political and social views to go away. We see this as to Campus student groups where that battle is hot right now and where perhaps the ultimate trend of who will win in that battle is in doubt.

The question of what is just discrimination and what is unjust discrimination is not always clear. Because the fact that it is not always clear that is good reason in my mind to be wary of enforcing Government sanction against without thinking that course through.

Law Prog Greg Sisk over at Mirrors of Justice had two good post over the weeked that are worth reading. See On the Pain of Discrimination and the Role of Law and Government (Part One)  and On the Pain of Discrimination and the Role of Law and Government (Part Two).

In part II Prog Sisk describes a discussion he has been having with other on this question and the areas of agreement. As to the area of disagreement :

....Now, and here I return to the point where consensus has not been reached, I would submit that some of the same or similar characteristics or principles that define this second category of free choice also encompass the case that has been highlighted of the wedding photographer who declines to photograph a ceremony with which she disagrees. 

Similarly, an attorney may choose to represent only plaintiffs who allege they are victims of sexual abuse and simply refuse to represent defendants who are accused of sexual abuse. An advertising agency may refuse to work up a promotional campaign for a Republican politician. A public relations firm may refuse to take on a Catholic archdiocese seeking to counter negative publicity related to priest sexual abuse. A psychologist may specialize in counseling women who have suffered abuse, while choosing not to accept male clients. A couples therapist may focus on gay couples, while not choosing not to work with straight couples. Now each of these examples could be described as involving “discrimination.” But we have also used another term to describe these choices: Freedom. 

What I would argue distinguishes these business choices from the general prohibition on discrimination in goods and services is that the service or good provided is inextricably intertwined with a message or perspective that the provider may or may not wish to endorse. In these examples, the services are being devoted directly or nearly so to the promotion of a message, which thus implicates freedom of thought at its most critical. Moreover, because of the personal nature of these kinds of services, the service-provider necessarily must identify with the client, becoming a partner with the client in directly advancing the client’s goals. The connection between the provider of goods or services here is anything but collateral to the message, ceremony, position, etc.

 To use the law to require the service-provider of this distinctive nature to become involuntarily tethered to a viewpoint that he or she does not endorse is simply not compatible with fundamental liberty principles. That we may not agree with those choices, or even find one or another choice repugnant, cannot be the measure of our response, if freedom is have any purchase. Here at least, we should say that the law may proceed no further.

I think the part I put in bold is where the critical distinction and discussion needs to be focused on these matters.

Saturday, March 1, 2014

Want Religious Liberty ? Then Include The Lawyer Aristocracy

In the debates over bakers , wedding photographers and gay weddings there is a constant argument. It goes well did they do a wedding of someone that was divorced , do they sell unhealthy foods to someone that has obvious problems with the sin of gluttony; etc etc . HYPOCRITES ALL OF THEM .

 As Cardinal Newman said conscience has rights because it has duties .In the debate among Christians if Jesus would bake a wedding cake the aspect of the State overriding a person's conscience and putting many people of Faith in hard spot is often overlooked.

There is I have to say among some Christians an amazing lack of empathy in this regard.

 All this made me think about the people , the privileged in our society , that both formally and informally get to discriminate. That is Lawyers !

I have not heard many calls that Christian Lawyers call to " service " involves taking every case that comes through the door even thought they might have moral qualms. Here is a example.

 If someone came to me and said I need your legal work to set up a gay bar I might have a problem. If was it just a bar where likely people of same sex attraction might hang I might have not problems. However if it was a REAL GAY BAR rivaling some famous places on Bourbon Street I very well would object and not take their case. Further regardless of what kind of gay bar it was I might take their case if the City was placing fast and loose with the zoning laws in order to prohibit it being being built.

Now some Christians and non Christians would think this distinctions I make are crazy and inconsistent. However according to my conscience this  iswhere I draw the line. Of course my conscience can be overridden by a compelling state interest. For instance I am free not have to set up a couple civil like union through various means. However in a criminal case I would not be free not to represent a gay person if the court appointed me  . For instance though I oppose gay marriage I would feel obligated to give the best defense including the argument of spousal privilege. We can go on and on.

 For instance a lawyer that is part of the Freedom from Religion crowd should not be compelled to have to set up a Church as a corporation. At least that is my view.

 The fact is in most States as a formal and informal matter Lawyers don't have to take every client that comes through the door that has a valid case. Why then is a lawyer's talent, industry etc so different from a bakers or wedding photographers . Why is a Lawyer objector rights so much more privileged than a bakers ?
Include the Lawyers in this argument and you might see a different attitude .