The nature and destiny of the "unpleasantness between the states"

I've been looking at posts from, frankly, "Yankees," about the anniversary of Appomattox and what was given up by the "North" to appease the "South."  I say "Yankees" because the slant is obviously in favor of Northern sentiments over Southern ones. Which is not to say they should be more amendable to the execrable history of racism in America; but quit trying to imply, at the same time, that racism would have faded sooner had the U.S. been less conciliatory to the states of the former Confederacy.  I'd always understood Lincoln's point in going to war was to preserve the Union, not to punish the secessionists.

In other words, let's not make the mistake of Creon and try to leave the dead on the battlefield for the birds and the dogs, again.

I'm not going to name names because I don't want to start some kind of fight, here.  I don't rise to defend "the noble Cause" or the "heritage of the South."  That heritage was brutality and racism and greed and almost everything ugly about human society.  Yeah, I've seen "Django Unchained," and yeah, it struck me as being as good a representation of the pre-War South as any fictional presentation could be.  I accept Tarentino's vision as valid, at least for the sake of argument here.

Granted, I learned a different version of history growing up in Texas.  I didn't know this, for example; but I'm hardly surprised, either.  My sympathies are actually with those who don't want some of the slave states back in the Union, especially because Texas left with the Confederacy a short time after petitioning to be a state.  Texas took great pride in requiring all public school students to learn Texas history when I was a child; but I never learned that the battle at the Alamo was not for freedom, so much as it was for the ability to own slaves.  Seems Mexico had outlawed slavery, and the Texicans wanted to emulate Louisiana and points immediately east, so they resented being cut off from that kind of opportunity.  To this day, Texas has the highest percentage of persons living on minimum wage (which is not higher in Texas than the Federal floor), and our State leaders still brag about how many people in Texas are employed.

Not how many people in Texas are able to make a decent living.  Low wages are attractive to big employers, donchaknow....

But Reconstruction was not a period where the North did all it could to leave the South alone.  The town of Brenham, not far from where I sit, has an historical site in its downtown now (this is new.  Lots of Texas towns are doing it, and most are really good.  Even the history at the Alamo has greatly improved, now that they've removed the huge painting showing Davey John Wayne Crockett boldly making a last stand in a scene from the movie, a scene which has nothing to do with history.  The painting was a gift from Wayne after he shot his film there; it would have been bad manners not to leave it up for a decade or so.).  It details the history of the small town, including occupation by Union soldiers during Reconstruction.  Granted, racism still abounded in Texas (it was strong until my early adulthood; it has abated, somewhat, but seems determined to recur across the country).  But the display notes the harshness of the Union officers; men who had little regard for the Texans and not that much concern for the races in general.  The central event was a fire downtown which the Union troops did nothing to quell, and they may even have enjoyed watching the destruction.

It wasn't, in other words, the imposition of just order under the mythical Abraham Lincoln or the ideal envisioned by Dr. King, only to be trashed by Southerners who refused to bend.  It didn't make the town happy about the "occupation."

I'll grant Southerners were not willing to put aside the culture they had known from before the war; but neither did Europe give up its various cultures after a century of war (the 19th), or another half-century of war (the 20th).  It really wasn't until the fall of the USSR that Europe finally began to recover from its nationalism, but looking at Greece and Eastern Europe, one has to wonder how much has finally changed.  The Greeks still think the Germans who them reparations, for example.  And some countries can't decide (not just Ukraine) whether they want to be European or Russian.  That's a discussion that's been going on in Europe for centuries; and the beat goes on....

None of which is to justify the acts of Southerners in the late 19th century, or through the 20th century.  I'm just asking for a bit of perspective.  The United States was not full of angels in paradise trying to reform the demons in the hell of the American South.  Too much would have been asked to require the South to become like New England in the space of 14 years.  150 years later and we're still struggling with racial issues in America, from New York City to Ferguson, Missouri.  And I'm not really willing to let anybody forget what happened when Boston schools had to integrate in the late '70's, nor that the death of Brown v. Board came at the hands of a Supreme Court never dominated by Southern judges.

There is plenty of ugliness in American history.  I have no sympathies for the parties who, sometime in the '50's put a plaque up in the Texas Capitol arguing that the War between the States was not about slavery (at least it's on the back of a column in a poorly visited public area.  You have to look for it to find it.  I'd rather the State had the guts to take it down.).  But the best response to the attempted (again!) revision of American history is not to say, or just imply, that things would have been better but for the South.

Things would have been better had we never started the transatlantic slave trade, but while Britons never, never, never shall be slaves, they had no problem making slaves of others.  That was a profitable business for almost everyone, and the first thing America really learned was:  it's money that matters.

And it's violence that protects it; still two very American truths we should spend far more time being ashamed of; or at least being critical of.*

*I have to say this sounds more recent than historical, and a further proof that those who do not learn from history are doomed to repeat it.  This history also indicates the problems of trying to reconcile two disparate visions of governance, even of "America" (which also sounds distinctly contemporary, especially in our foreign policy debates; except we can't blame religion for the struggles in America).  The Southern take on Reconstruction is still formed as much by the occupation by soldiers as it is by the desire to continue the oppression of former slaves by groups like the KKK.

"All Professions are Conspiracies against the Laity"

The shorter version of this:  philosophers are like any other modern professional.  If you want them to pay attention to you, brings lots of money.

The longer version is kind of interesting.

Of nature and destiny

Just pluck this quote and regard it in the context of the current prevailing internet discussions (where atheism rules the world and will soon save us all), or consider it a much more cogent political analysis than anything you're likely to read almost anywhere:

A further consequence of modern optimism is a philosophy of history expressed in the idea of progress. Either by a force immanent in nature itself, or by the gradual extension of rationality, or by the elimination of specific sources of evil, such as priesthoods, tyrannical government and class divisions in society, modern man [sic] expects to move toward some kind of perfect society. The idea of progress is compounded of many elements. It is particularly important to consider one element of which modern culture is itself completely oblivious. The idea of progress is possible only upon the ground of a Christian culture. It is a secularized version of Biblical apocalypse and of the Hebraic sense of a meaningful history, in contrast to the meaningless history of the Greeks. But since the Christian doctrine of the sinfulness of man [sic] is eliminated, a complicating factor in the Christian philosophy is removed and the way is open for simple interpretations of history, which relate historical process as closely as possible to biological process and which fail to do justice either to the unique freedom of man or to the daemonic misuse which he may make of that freedom.

 Reinhold Niebuhr, The Nature and Destiny of Man: A Christian Intepretation, Vol. I (Louisville, KY: Westminster John Knox Press 1996), p. 24.

I mean, let's face it:  David Brooks wishes he could argue like this.  Consider the heart of the argument there:

The idea of progress is possible only upon the ground of a Christian culture. It is a secularized version of Biblical apocalypse and of the Hebraic sense of a meaningful history, in contrast to the meaningless history of the Greeks.

That is not a fundamentalist statement that we are a "Christian" country, nor is it a gratuitous swipe at Hellenic Greece.  The ancient Greek concept of the cosmos, one reflected in their invention of the tragedy, (where if anything can go wrong, it will, with terrible consequences and the only redemption is owning up to your responsibility for those consequences), is that the original state of the universe (the cosmos, "everything"), is chaos.  Logos (reason, and word; two concepts that are closely related in Western thought) imposed order on chaos, giving rise to the world/universe we live in.  But that order did not dispense chaos, only quelled it; and eventually logos fails, and chaos returns.  So history has no meaning, no telos, no purpose; it's just what happens between the quelling of chaos and the return of chaos.*

So Niebuhr's argument is not that the idea of order in history proves Christianity; it only proves the importance of Christianity in western culture, and how much we take for granted ideas that are rooted in Christian thought, though we think them now to be wholly secular.  That, to me, is the interesting point.  And then, as Niebuhr points out, if we remove the doctrine of original sin, we "fail to do justice to the unique freedom of [humanity] or to the daemonic misuse which [we] may make of that freedom."

That's all.  Although it does tie in nicely with the idea that a little knowledge (something you cannot accuse Niebuhr of) is a dangerous thing.

*If you are a hardcore Zelazny fan, this is why Amber was balanced with the Courts of Chaos, and why Chaos was eternal and would eventually "win" the effort of Amber to organize the universe.  I confess I gave up on that series after the original five books; I don't even own those anymore, though I'm sorry I lost them.  They seem to be as lost to the mists of time in popular culture as they are to me.

I still blame Hobby Lobby

I suppose I'm establishing something of a brief against the reasoning in the Hobby Lobby decision (and, by extension, the Supreme Court in general).  I can't quite make the leap from a government mandate (providing health insurance for employees) to a violation of one's religious principles as a closely-held corporation.  Can I cite Job ("Man is born to suffer as surely as sparks shoot") to defy government regulations that require I provide a safe workplace, or to allow women to work when they should be in their "time of confinement"? (Look it up, it's not worth it to me).  

At least both of those positions are tied to particular scripture.  I still can't find the scripture that says "Thou shalt not participate in a same-sex marriage, even unto letting your business sell the groom's cake!"  I do remember quite a few passages about "Who is this, that he consorts with prostitutes and tax collectors and wine-bibbers" (the latter seemed to be in the Baptist translation; or maybe it's just my bad memory).

I'm pretty sure I know who that was.....

Anyway, the reasoning in Hobby Lobby is dumb, and it's making us all dumber.  Lights, however, continue to be lit:

First, “bigotry” is not holding a belief, but denying someone else’s dignity as a result of that belief. For example, Christians for centuries believed that the Jews rejected Christ and should be punished. That belief, in itself, is not bigotry. But centuries of pogroms certainly is.

In the contemporary context, no one is saying a belief is bigotry. What is bigotry is opening a business and then denying some people service on the basis of their identities.

Second, as members of a minority religion, American Jews have long enjoyed constitutional protection from the Christian majority, which has sought to compel Jews to say Christian prayers, yield to Christian holy symbols in civic spaces, and conform to all sorts of Christian religious practices. To twist the meaning of “religious liberty,” from a shield against co-option of government by the majority religion, into a sword against minorities, would undo such protections.

What these writers are calling “religious liberty” is really Christian hegemony.

Hobby Lobby didn't really open this door, and as much as some will thrust against, it will never be opened.  But the efforts to redefine bigotry and discrimination are as ugly as they were in my childhood.  I had really imagined, at one point a few years ago, that we were finally beyond this.  Now I'm not sure we will ever be.

Niebuhr was right; and nothing from beyond us is going to save us from ourselves.  We can be saved, but we have to engage in the salvation, or nothing happens that is worth happening.*

*To which conversation I would add this post at Religion Dispatches.  My first thought was a line Dom Crossan concocted, trying to reconstruct what he thought was a more original version of the sayings of Jesus (a notable effort, but not one to be taken as scripture; more of a palate cleanser, really, a way of removing layers of varnish and dirt to restore the original):  "When you start a fire," he "quotes" Jesus of Nazareth, "You want it to burn."  It's his version of Luke 12:49.

Odd the Bishops are just now figuring that out.  And they call for calm even as they take up the vocabulary of "bigotry" and "discrimination" and claim themselves victims.  Now the piper wants to be paid for playing the music they danced to.  Now the fire wants to burn.

Elisabeth Sifton praises her father, Reinhold Niebuhr

An interview (worth reading on its own) which ends with her favorite quote from her father, which is also a favorite of mine:

Nothing that is worth doing can be achieved in our lifetime; therefore we must be saved by hope. Nothing which is true or beautiful or good makes complete sense in any immediate context of history; therefore we must be saved by faith. Nothing we do, however virtuous, can be accomplished alone; therefore we are saved by love. No virtuous act is quite as virtuous from the standpoint of our friend or foe as it is from our standpoint. Therefore we must be saved by the final form of love which is forgiveness.

I am almost allergic to the topic of salvation, because it is almost always presented as something done to us, or for us; something from outside which we must accept to make effective.  That's not an originally Christian idea; Christianity actually got it from Rome.  Caesar, a divine figure in his own right, a divi filius  (son of god), was the savior of Rome and all of Rome's subjects.  Caesar saved those who lived under the empirical rule from the barbarians, the uncivilized (a notion they got from the Greeks, for whom the term meant literally those who don't speak Greek; that is, they babble, "barbarian" sounding in Greek like the language of non-Greek speakers.  To this day in America we insist all real Americans speak American English.  The more things change....).  The salvation Caesar offered was the Pax Romana, which you refused at your peril (crucifixion being the punishment reserved for those who threatened the Pax).

In modern times it's an almost purely religious concept, but it still retains the sentiment that we will be saved by an outside force, that salvation will come to us and do for us what we cannot, or will not, do for ourselves.  It's not a very Biblical idea, actually; but it also doesn't depend on an atonement soteriology that saves you from damnation in the next world no matter what happens in this one.

Niebuhr's idea of salvation is neatly captured in this quote.  We must be saved by hope; by faith; by love; and by forgiveness.  None of those are exterior to the human experience.  None of those rely solely and explicitly on a certain Christian theology.  Hope may be hope in Jesus Christ, but it needn't be.  Faith is not belief "in what you know ain't so," it is merely trust; what you trust is another question.  Love is perhaps the most difficult to define here, actually; and forgiveness is the hardest thing to do.  How can you forgive without hope, faith, and love?  And how can you have hope, faith, and love, without some belief in more than the merely material world?

But none of these, however we understand them, will come to us; we must find and use them.  Hope, I would argue, is illusory without faith; faith is empty without love; love is nothing if it is not an activity; and forgiveness flows from all three together.

Is God a necessary component of this concept, this offered salvation?  I would turn the question around:  will you reject the possibility on that ground alone?  If so, what salvation do you offer, and where does it come from?  If you tell me it comes from reason, can I not say that is your "god"?

Because I can't distinguish it from any other outside source that will supposedly save us by making us all agree on what is important, and brutally rejecting what is not.  Which is not the result I see from a formula based on hope, faith, love, and forgiveness.

The more they remain....

Yeah, yeah; we have to keep asking....

I suppose the advantage is, getting to see it stated plainly:

"This isn't about discrimination," DeLay said in an interview with Newsmax. "We love people that have chosen to be homosexuals. The problem is we abhor the sin. So yes, when I have a business and some gay person walks in —unidentified by the way, there's no way he could tell you— then I'm going to serve him. But if he comes in and asks me to undermine my values, what I believe in —undermine my religious liberty then I have the right to not serve him. It's not discrimination. It's the government telling us how we are to act, what we are to believe, and that has got to be fought with every ounce of our being."

Ignore the "have chosen to be homosexuals" line; that's a red herring.  What's interesting here is the concept of "religious liberty."  You undermine my liberty when you undermine my values. Can I use that to refuse to pay taxes that support the U.S. war efforts?  Can I use it to discriminate against other people?  But we've had that argument, haven't we?  And we decided, as a society, through our statutes, that it would not prevail.

Which brings up a separate point:  what if the Supreme Court decides same-sex marriage is not only allowed under the Constitution, but cannot be denied under the Constitution?  The precedent here is supposed to be Loving v. Virginia; but the real precedent is actually Brown v. Board of Education.

Brown v. Board was handed down 10 years before the Civil Rights Act was passed.  I don't know the legal history well, but I do know enforcement of Brown hadn't spread to East Texas (the "Southern" part of Texas; in many ways, it's just western Louisiana) until 1970.  Court ordered desegregation of Boston schools started a few years later (the year I entered college; something, as a Texan, I never quite forgot.  Of course, they were still fighting over it in Austin when I got there in 1978.).

According to this Slate article, Brown wasn't really effective until after 1964.  And I understand that by 1967, when Loving was handed down, very few states in the country still made mixed race marriages a criminal act.  Which is the major distinction between that decision, and any ruling on same-sex marriages today; at least from a Constitutional standpoint.

I also know that, today, the Loving decision is uncontroversial; while Brown, while still hailed as a landmark, is basically dead.  The news is full of failing and grossly unequal public school systems; but nobody decries them as a violation of Brown, and no court is making any effort to enforce Brown in any meaningful way.  The same can be said for Roe v. Wade:  that fight has never been won politically, and so it goes on, over 40 years later.  Roe has turned into a perpetual battleground, while Brown is honored in breach, and not at all in the keeping.

And the distinction between them is:  it takes a community to support a school system, and they will only support the school system they agree, through laws primarily, is valid.  Courts protect rights under Roe, to the extent they do, for individuals; enforcing rights under Brown requires enforcement against communities.  If the communities refuse to cooperate, enforcement breaks down.  Our school systems should be much, much better than they are; but we have to decide to make them better, not expect an outside force to do it for us.

If the Court rules that same-sex marriages must be allowed under the Constitution, don't expect the fight over "religious liberty" to end, in other words.  There was no similar fight in '67 because no one really quarreled with the Loving decision by '67.  The people had pretty much spoken, in the Civil Rights Act and the Voting Rights Act.

In fact, the fights that continued involved not implementation of those Acts, but whether or not they were enough.  Affirmative action, still controversial today (and never fully implemented), began after 1964; and was thwarted, more than aided, by the Supreme Court, starting with the Berger Court that succeeded the Warren Court.

As the Slate article argues, we really can't look to the Court to save us.  It's heritage and history has been more to thwart progress, than promote it.

Tom DeLay is a braying ass; but the best way to defeat his idea is in the Congress.  The legislative solution to this "religious liberty" argument, spurious and offensive as it it, is to amend the Civil Rights Act to include sexual orientation (not "preference") as a protected class.  We have never, as a society or through our legal system, allowed discrimination to be protected by the First Amendment.  We don't need to start now.

Because, after all, you can "choose" to be Catholic, or Protestant, or non-Christian; and we could even argue nationality and race are a choice, to some degree.  We know we don't want to return to that basis for legalizing discrimination.  But it will be far more effective if we make that clear in our statutes, rather than leave it up to the preferences of 9 bickering individuals.

What we talk about when we talk about...

... something we don't really know anything about.

But I don't mean something we can know anything about.  Well, I don't mean something we....well, let me just explain.

In an article at Salon, in a pretty lame discussion of evolution, there was discussion about the possibility of "uploading" human "consciousness" into machines.  It's a wonderfully trashy idea, akin to "freezing" a terminally ill patient until the cure for their disease can be found.  It's trashy for a very simple reason:  no one ever talks about uploading the "soul" or the "heart."

Why not?

In fact, the presumption in science fiction stories is always that, if you upload the "mind," the result will be a less than human product, because the "heart" won't necessarily follow.  Okay, that's a bad example, because first it's science fiction, and second narrative always needs a conflict, and what better one is there than that transferring "you" to a machine will result in something that is no longer wholly "you."

But what is "you"?

For the longest time in Western history, "you" were your soul; and your soul was your essence.  This, on the other hand, was not always true.  "Soul" as we understand pretty much reaches back to Plato, and pretty much entered Western thought with Neo-Platonism becoming wed to Christian theology.  It's a long story, but the more popular notion for centuries was a version of what the Hebrews called ruah, or the Greeks pneuma (it's used that way in the Greek New Testament):  breath, wind, life.  It was, of course, the classic method of determining whether the body was unconscious, or dead:  was there any wind, any breath, left?  Without it, how could there be life?

Soul, that abstract, inchoate, metaphysical something which both animated the corpus and provided your identity, your self, became more popularly accepted much later.  And then we discarded it as unscientific, and took up the much more secular "consciousness" as our preferred term.  But when we use it we still mean "soul," except perhaps without the "eternal" modifier.  And, of course, we still speak of "heart," although we insist we don't mean that muscle beating in our chest.  Heart is somehow not consciousness, but also somehow still important to us (to lose your "heart" is to become a machine, a soul-less being, less than human but more than a zombie, and yet frightening because, without a heart, what is there in you that human to appeal to?).  Heart is important, but we can set it aside in favor of better living through technology and eternal life through some kind of "mapping" of our "consciousness" onto....well, what's the latest hardware?  That's always the source of this kind of miracle.

"Mapping," by the way, is a mathematical concept, one I last encountered when studying Russell and Whitehead's attempt to map philosophy onto mathematics, an attempt Kurt Godel blew to pieces with relentless logic (and, not coincidentally, mapping).  Mapping persists in some corners outside the realm of mathematics as some kind of magic that will, through processes unknown, accomplish miracles, usually involving computers and human brains.  It sounds kind of like the road map we can now get on our cell phones, or maybe an atlas that shows us all the major physical features of the planet, but it must involve some kind of correspondence like that, between paper (or electronic) reality, and "real" reality.  Besides, the brain is just like a computer, right?  Neurons are hardware, thoughts are software, consciousness is A.I. we just haven't accomplished yet.  See how effortlessly mind maps onto machine?

Actually, you see what a hall of mirrors this quickly becomes.  And yet it is undone by a simple question:  why can't I expect one day to upload my heart, my soul?  Why is consciousness something machines can one day be expected to share with humans, but heart and soul are not?

It's questions like this that make me think people like to entertain themselves with fairy tales, even as they condemn religious people for believing "nonsense."

Othello and Rolling Stone at UVA

I've had personal experience with people simply making up stories about me, so I know it is possible.

The problem is, just saying that doesn't prove anything.  I could tell you the whole story, and you could believe me, or you could assume (as I would, having represented my share of clients who never tell their lawyer the whole truth, just the truth they want to admit to) that I'm shading the truth to suit my defense.   Of course, what you can't do is ask the other participants in the story what happened.  So there's that.

But I read a number of stories about "Jackie" and UVA, and how "Jackie" couldn't be making up the story of her rape at the hands of "Drew" because she was simply too credible.  Well, that is, until her story was thoroughly debunked.  Now even Amanda Marcotte no longer believes "Jackie":

Not only did Jackie not hand a specific man over to the authorities, but the report suggests that “Drew,” the ringleader of the gang rape Jackie describes, may be a fictional character. (Jackie described him as both a member of Phi Kappa Psi and a lifeguard at the Aquatic and Fitness Center. No such person fitting this description exists.) Instead of trying to bring her supposed rapist to justice, Jackie did everything in her power to stonewall any attempt to find him. When Erdely started to push to find out more about him, the investigators report that “Jackie stopped responding to Erdely's calls and messages.” The silent treatment worked and Erdely capitulated, agreeing not to try to find out anything about this man, at which point Jackie “now chatted freely.”

Which isn't as clear as it could be, so Marcotte clarifies by the end:

Jackie’s apparent lying will certainly be used against future accusers, who accuse specific men of specific crimes. But that is comparing apples to oranges. We have a story about a woman who probably made things up to get attention and sympathy. That doesn’t prove the widespread allegation that women routinely redefine consensual sex as rape to get revenge.

I'm trying to be fair by quoting Marcotte in context, because my real subject isn't her or her opinions.  Her conclusion, in fact, is sound.   I'm still not convinced campus rape is a widespread, epidemic problem, or that there is a "rape culture."  But I am convinced people tell lies easily and well, and we believe them because...well, because, we don't have any reason not to.

Call it the "Iago Syndrome."

Shakespeare's worst villain, Iago tells Rodrigo in the first scene "I am not what I am."  It's a negation of the famous identification God gives Moses when Moses asks the burning bush, "Who will I say has sent me," and God answer "Tell them I AM has sent you.  Tell them I am that I am."  (that's from memory, by the way, not a direct quotation.)  Iago, by engendering trust in every character in the play (except Emilia, his wife, who knows better), undermines the entire social order based on trust.  If we cannot trust each other, if we cannot depend on our determination of who is trustworthy and who is telling lies, society itself comes to a halt.*

Of course, it never gets that bad, but just because "Jackie" was convincing is no reason to conclude that "Jackie" was ever telling the truth.  Was she even raped?  I have to agree with Marcotte:  "We have a story about a woman who probably made things up to get attention and sympathy."   Once you say someone made up some of it, you have to be open to the possibility she made up all of it.  That's where "Jackie's" ability to act, to lie, to be credible, comes in.   But like the narrator of "The Tell-Tale Heart," if we stop to consider his story about the beating heart can't be true, and that we only know the story of the murder because he says there was one, how do we know any event in the story actually occurred?

We rely on narrators not to lie about everything to us.  But when they do.....

The story of "Jackie" doesn't prove anything beyond the fact Rolling Stone did a very poor job reporting what turned out to be sheer gossip.  The line between gossip and journalism is a thin one, anyway, but Rolling Stone erased it at every opportunity.  On the other hand, "Jackie's" story doesn't prove there is a rape culture, either.  It fed that mythology very nicely, but that's how you feed a fable:  with more fables.

What we actually face here is a problem we can't resolve:  we have to trust each other.  We have to verify (the step Rolling Stone failed completely).  But we can never be sure "something happened" just because someone seems convincing, because we still don't know:  was there a rape?  Or did "Jackie" confuse imagination with reality?

Marcotte wants to reject the latter possibility because we lack a motive.  But motive is a thing in murder mysteries; it is a tool of fiction, where the behavior of the characters is always, in the end, explained.  Even Poe's narrator asks us "Will you say I am mad?", which explains why he would spin a tale of murder and confession that might not be at all true.  Reality isn't that convenient.

Murderers go to jail on the basis of intent, not motive.  We will never know what motivated the pilot to take the Germanair flight into a mountain.  All we can ever know is that he did it.  We can't even know that "Jackie" made up her story out of whole cloth.  All we can know is that the details she gave it, aren't supported by any evidence.  Why she gave it, may forever remain a mystery.


*And there is a mystery to Iago's motivation.  Is he angry at being passed over for Cassio?  Jealous because of rumors Othello may have had an affair with Emilia?  Desirous, like Roderigo, for Desdemona?  In the end none of those reasons seem to matter enough to motivate Iago across five acts and with such ruthless determination.  In the end all we can surely say is that he is not what he is, and the most frightening thing may be that his evil is without the clear motivation of Shakespeare's other villains, that it is simply something pure and undiluted, requiring nothing further to make it happen.

What rough, rude beast....

It's seems pertinent to just ask again....

I blame Hobby Lobby.

My parents were raised in Christian churches.  They got married in my aunt's living room.  As best I understand, this was quite a common practice.  The elaborate church wedding inspired by British royalty in the 20th century took a while to catch on.*

When I was a practicing pastor, I regularly performed wedding ceremonies for people who wanted a "church wedding," but who were not members of my church, nor particularly Christian.  So it wasn't particularly a religious function for them; they just liked the setting.

I've also attended weddings at churches where the participants weren't members, but the sanctuary/chapel/what have you, provided a nice backdrop for the photographs.

Protestants don't even consider marriage a religious ceremony; not officially, anyway.  My wedding was in a church, but that wasn't because I thought I wouldn't be married if the preacher didn't officiate in a building designated a "church."  (Which is another thing.  The Book of Common Prayer has an appendix volume for unusual services, which includes one for blessing, or deconsecrating, a worship space.  I know of no parallel to this in any other Protestant tradition.  It raises the question of whether the marriage must be conducted in a consecrated space, except really, it doesn't.  This whole argument isn't really about religion or marriage; it's about change, and how we have to adapt to it  The "holiness" of the service isn't even at issue; it's the fact that the state, which truly controls marriage in America, is making it possible. Yet there is no basis to claim that fact violates one's free exercise of religion.)  By the time I married, weddings in a church were the common practice.  We did it because that's what you did, not because the space or the pastor made it more acceptable to God.

There is a lot of concern now about "gay marriage," and the ability to object to it.  Legally, of course, it's a public accommodation argument:  you can't open your business to the public and then refuse to serve certain classes of people.  Well, you can refuse to serve LGBT persons, because there is no federal law (and few state laws) that prohibit discrimination against them.  But the objection now is settling on marriage, and whether or not you can be "forced" to participate in them.

And "participate" here is part of the skewed reasoning of Hobby Lobby v. Burwell, where providing insurance for one's employees as a benefit of their employment (literally as part of their compensation for their labor) is somehow a burden on the employer if it involves coverage of drugs or treatments the employer claims a moral/religious objection to.  Then again, as a society we've never allowed that argument to prevail in cases of discrimination, so even after Loving v. Virginia and now Hobby Lobby v. Burwell, no baker is demanding a right to refuse to cater a mixed race wedding.

Mostly because you wouldn't get very far with that argument in court, or in the court of public opinion. It was tried when the Civil Rights Act was passed.  In Newman v. Piggie Park Enterprises, Inc., the defendant claimed: "that the [Civil Rights] Act [of 1964] violates his freedom of religion under the First Amendment 'since his religious beliefs compel him to oppose any integration of the races whatever.' "   The court was not too impressed with that argument, and how you could distinguish it now on the basis of a Hobby Lobby v. Burwell claim of freedom from government imposition under the 1st Amendment is a bit beyond me.  I suppose you could make the libertarian argument that "the market" would work against such a position of discrimination, but I'm not sure it was "the market" that harassed Memories Pizza into taking a hiatus (or that raised a reported $800,000 in support of its owners.  You really have to stretch the idea of "the market" pretty far to hail that as a libertarian success story, on either side.).

This imbroglio will probably soon blow away.  If the Supreme Court decides there is no rational basis for disallowing same sex marriages, they will be as protected as mixed race marriages, and at that point I don't think RFRA laws in Indiana or Arkansas will be much protection to bakers and florists, if only because of the social pressure (an amendment to the Civil Rights Act of 1964 is still advisable, because a Supreme Court decision might still not make sexual orientation a protected class).  As I say, no one would think today to refuse to cater, say, a Protestant/Catholic wedding, or a Jewish/Gentile wedding.  It won't be such a large step to adding that for same sex marriages, in practice if not soon in law.

Eventually this, too, will fade; not as soon as the bad reasoning in Hobby Lobby v. Burwell, but soon enough.

*Of course the British monarch is the head of the church, so it is right and proper members of the royal family are wed in a church.  But it underlines the reason Protestants in this country wanted to keep church and state and weddings as separate as possible; because weddings were not essential to Christian practice, and were largely a matter of property rights (for the state) and social order for the community.

Easter vigil Easter Morning

I originally wrote this over at Thought Criminal.  It's pretty much a bit of vainglorious navel gazing, but I decided to post it here anyway.  I was prompted by his remarks on the Easter liturgy, so you might want to there first.

I used to use a form of the Easter Vigil liturgy (probably similar to the modern Catholic liturgy; my version came from the UCC Book of Worship) on Easter Sunday.  The church was dark and silent, no paraments and I wore no stole; no candles, no lilies (which always upset people at first).  I brought in a tall candle, the "Christ Candle" (a novelty to a Protestant church) and read the liturgy of light.  The first 10-15 minutes were in a space lit only by the windows, and no sounds except spoken words.  When it came time to declare Christ risen, the organ would thunder an Easter hymn as the lights came up, the white paraments came out, the lilies appeared, and spirits (I always hoped), rose.

There were, as you say, several more readings from the Hebrew scriptures, recalling the salvation stories throughout history, leading to the gospel story of Easter morning.  There was a service of water (renewal of baptismal vows by all present), a service of word (preaching), a service of the eucharist.

It was my longest service of the year, and my favorite.  Nobody complained about the length (whereas if I ran 4 minutes over any other Sunday, I heard about it for weeks), or about the absence of flowers when they came in.

I have to admit I miss it terribly, if only because of the spiritual renewal it never failed to give me.  I hate to be the center of attention, I don't like to stand up in public, but I miss leading worship.  It was, for me, a very vivid and incarnated form of prayer.

Walter Brueggeman teaches that liturgy is a form of remembrance.  It is that.  And remembrance is a form of spirituality, of placing yourself consciously in the presence of God.  Worshipping God truly is a communal matter, and it truly isn't a matter of bending the knee before a master, wishing for beneficence from on high.  It is so much richer and more purposeful than that, and truly has so little to do with you, and so much to with the cloud of witness of which you may, for a moment, become a part.

A blessed Easter to you all, whatever your beliefs.  As the E&R eucharist said:  "May it be unto your according to your faith."

Good Friday 2015

Not a version I was familiar with, but still achingly beautiful. Aside from Bach, probably the only music I would allow on this day.

Good Friday: A Meditation

I've learned to think of Good Friday as the day the church wears black, and strips the altar of all vestments and colors.  There shouldn't even be music on this day, just words and silence.  Oddly, the images I went looking for on Google for "Good Friday" were all rather relentlessly cheery, completely at odds with my interpretation of what this day, of all days on the Christian calendar, should be.  This should be the day Christians face the absolute reality of death, if only to better appreciate Easter morning.  So, no art for this post; it isn't appropriate.

There persists in corners of the internet those who think they are "wise" because they "know" there is no evidence for the existence of Jesus of Nazareth, and therefore Christianity itself is simply a sham.  Partly because it is Good Friday, I want to address this contention.*

First, Biblical scholars by and large agree there was a Joshua (Greek:  "Jesus") who lived in Nazareth in the 1st century, and preached in the countryside, and was crucified, dead and buried.  It isn't really a controversial point; even the infamous Quest of the Historical Jesus (which almost no one has read, these days) concluded that there was  Jesus of Nazareth alive at the time specified, and saying pretty much what he supposedly said.

That's not much of an argument, though, and even Biblical scholars don't spend much effort creating an airtight case for the matter.  It really isn't of much interest, there really isn't any sound reason to doubt it (given what we know of many personages of ancient times), so they move on.  Still, that's one response to those who insist Jesus was not "real."

Then there's the example of Socrates.  He lived in Athens, a literate culture at the time where many people apparently knew him.  He was well-known enough to make it into a play by Aristophanes; there's not much benefit to a story that mocks a person almost no one in the audience recognizes.  But otherwise, Socrates didn't leave much of a record.  Yes, there are the dialogues of Plato, but Socrates is a character in Plato's dialogues, not an historical figure whose every utterance Plato duly transcribed.  We know what Plato says Socrates said; we don't know what Socrates said.

And yet the thought, the ideas, attributed to Socrates form the foundation of Western culture and civilization.  You can't overstate the importance of Socrates; but we can't even be sure he is more than a fictional character, at least the Socrates of our knowledge.

Why does it matter that Jesus lived, if it doesn't matter that Socrates did?

The importance of both men is in what they said, much more than what they did.  Even from Plato's accounts Socrates just gadded about Athens, ignoring his wife and children, staying up all night drinking when he had the mind to, and generally pissing off Athens until they decided to put him to death, a sentence he almost dared them not to pass on him.  But it isn't his prodigious ability to drink that we admire in Socrates, or his ability to carry on a dialogue at the drop of a hat, or even his claim that the Delphic Oracle pronounced him the wisest man in Athens.

We remember what he said; or, more accurately, what Plato says Socrates said.  Which puts Socrates (it has been noticed before, this is nothing new) in the same place as Jesus.  In terms of what we know about them, and what we most pay attention to, it is what they said, not what they did, that matters.

Now you may point to the miracles attributed to Jesus, and say those matter.  But to whom?  The synoptics call those actions "acts of power."  John's gospel calls them "signs."  One displays the power of the individual; one seems to signify (literally sign-ify) something other than the act itself.  And whether or not you think the gospel writers recorded them faithfully and truthfully, is an act of faith itself.  You can, rather like Jefferson, read the words of Jesus and skip over the dunamin, the semeia.  You can set aside what he reportedly did, and focus on what he reportedly said.

Nothing, so far, requires proof that Jesus, or Socrates, for that matter, was an actual historical figure.  It is the words attributed to them, the ideas associated with them, that matter.  So why is it so important that Jesus have actually lived?

Maybe because Paul says that, if Jesus didn't die, then the resurrection is a nullity, and Christian faith a pointless endeavor.  A sound enough argument, but it applies only to believers.  If you believe Jesus' death has spiritual or even metaphysical implications for you, then the life and death of Jesus are important for reasons that have nothing to do with history.  If you only believe the words of Jesus are interesting, are perhaps no more valuable to you than the words of Heraclitus, or even Thales of Miletus, then what does it matter if Jesus actually said these things, or if some tradition somehow sprang up that attributed these words to a fictional character (a fantastical idea, actually, which presumes we are far superior to people of the 1st century, an arrogant and unsustainable presumption).  If the words matter, the life of the person doesn't.  And the words of Socrates matter much more than how he did, or didn't, treat Xanthippe.

So why does the life of Jesus matter so much?  Perhaps because the faith of so many Christians rests on the historical figure of Jesus, and presumably, without that history, Christian faith disappears?  Or would that be like the Grinch stealing Christmas?

You cannot convince the faithful that Jesus of Nazareth never lived, and isn't alive now.  If you do convince someone of that, they are no longer faithful (for better or worse).  But it only matters to the world if the reality of the theology mentioned by Paul, above, matters to the world.  As a minister of the gospel, I think it does matter; but that's a far cry from saying I think it should matter to everyone in the world and it's my responsibility to see that it does.  If you don't accept Paul's faith claim, you don't care if Jesus lived or didn't.  His death is not material to you.  His lack of existence is not material to you, either.

So if you insist on arguing that "Jesus of Nazareth never existed!," you are making a faith claim no different from those who insist "Jesus is Lord!" and all the earth must acknowledge it.  You are claiming that the death of Jesus does matter, but you must erase it so it can't matter, so you can be:  what?  Free?

Free from what?

I don't make this as some kind of sneaky evangelical claim meant to prove beyond cavil that my faith claim is the only permissible faith claim.  It matters not to me whether or not you think Jesus was ever alive.  What I don't understand is why it matters to much to you that I believe he was.  Because if he wasn't, what does that change?  A theological claim you reject anyway?

What's really bothering you about the reality of Jesus?*

*I stumbled across this, this morning.  It is a fine summation of the argument I'm referring to, so I add it as a footnote:

It is not an impossible situation. We can start with Jesus, and establish a careful reading of the New Testament shows he was not an actual person. Once that one has been cleared up, I think a lot of the others might just fall by the wayside.

I'm going to call this the "Grinch" argument from now on, since it presumes the entirety of Christianity falls if the historical Jesus is removed.  And because that argument (or is it a belief?) rests more on the need of the person making it, than on the needs of the persons who call themselves Christians. 

Still unclear about the concept

“If a gay couple came in and wanted us to provide them pizzas for a wedding, we would have to say no,” O'Connor told the news station.

But:

The family later clarified for the news station that they would not deny service to a same-sex or non-Christian couple who came to eat at the restaurant.

In other words their "religious conviction" is based solely on the concept of marriage, not on providing services to homosexuals.  To be consistent, they would have to refuse to cater non-religious marriages, or maybe Catholic marriages, or Jewish ones, or Buddhist or Muslim ones (are pizzas even halal?  or kosher, for that matter?) because clearly they consider marriage to a a religious practice.

Except it isn't, not for Protestants.  So maybe they're devout Catholics and consider marriage a sacrament.  No service for Protestants, then; or atheists.  Or people who get married at the courthouse.

This rapidly devolves into absurdity, especially since they have no problem selling pizzas to gays and lesbians, they just don't want to be involved in "gay" weddings.  Unfortunately for them, that is the very definition of discrimination.  There is no rational basis for their decision, they just object to the law authorizing the marriage of certain persons.  If they said the same thing about mixed race marriages (which could be black and white, or Asian and Mexican, or any combination of "race" you care to make), how far would they be expected to get?

I wouldn't put it past the Supreme Court that handed down Hobby Lobby v. Burwell to decide that kind of discrimination is allowed (although Hobby Lobby didn't involve an issue of discrimination, so I could be wrong).  Of course, under Indiana law and federal law, homosexuality is not a protected class, so they are free to discriminate if they wish to.  Well, until the Supreme Court does for same sex marriage what Loving v. Virginia did for interracial unions.

But it seems to me Indiana's RFRA is kinda moot before that, except this kind of example underlines that Indiana's RFRA is aimed at allowing discrimination to survive that expected ruling.  Then again, if all that law does is allow people to discriminate against other people based on who is marrying whom, and nothing else, I could still see room for the courts to strike the law down now.

Because seriously, you can't preach it as round and square as that.

Same as it ever was

“It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.... Three generations of imbeciles are enough.”--Oliver Wendell Holmes

So, the other day, I found this:

“If Randers wanted to avoid 15 years in prison,” Barchenger writes, “Randers would have to agree to a condition. Sterilization.”

Why sterilization?  Because she'd "struggled with mental health issues" since she was a teenager, and because her infant daughter died of unexplained causes in 2012.  After two years of investigation into this "plea deal," she was transferred from jail to a mental health facility.

The infamous Carrie Buck case involved mental health issues.  Ms. Buck's allegedly low intelligence was leading her to get pregnant out of wedlock and create burdens on the state of Oklahoma.  You might have thought we were finally beyond such attitudes.  Nope:

“Over a 10-year period, that isn't a huge amount of money … compared to what you save in welfare paying for these unwanted children — as they procreated more.”

That 10-year period was from 2003 to 2013.  The California law allowing the practice of forced sterilization was repealed in 1979.  It was the law of California for 70 years.  Many states repealed their laws in 1979, it appears.  But as in the case of Ms. Randers, it still goes on.  The only change is cosmetic:  we don't call it eugenics anymore, because:

Eugenics is the now-discredited movement that sought to improve humans' genetic composition by preventing those seen as defective from reproducing. These supposed defects included mental disabilities and characteristics seen as making someone socially inadequate or unfit.

It didn't start with Nazi Germany, however.  Actually, the Nazis learned it from us:

Virginia's Sterilization Act became a model for similar legislation passed around the country and the world, including Nazi Germany. Nationwide, 65,000 Americans were sterilized in 33 states, said Mark Bold, executive director of the Christian Law Institute, which has been advocating the cause of the Virginia victims since 2013. In Michigan, more than 3,000 people were involuntary sterilized, according to a January 2009 article in the Michigan Bar Journal.

The Nazis hated Jews; we hated the poor.  There, I've proved Godwin's Law for you.  Forced sterilization was enforced against the poor, because this is America, and we have always feared the poor.

It's fair to say eugenics simply hasn't been discredited enough.  We dropped the word and continued the practice.  We don't even need to say it's "science," anymore; we just need to say it's simple economics:

People are too damned expensive.  As the LA Times noted:

... the intent of eugenical sterilization laws like California's was not simply to deprive victims of children, but also to ensure that they and their posterity ceased to exist. It was the state-sponsored means of eradicating entire classes of people. It is only when the victim dies that the stated objective is accomplished.

That may no longer be the stated objective; but it's still the intent.

Riffin' on RFRA....(sorry)

Because, really, nothing else works here....

I was gonna put this in a comment, but it got too hard to read what I was saying in that tiny box.  So I'm moving it up here.

First, I'm responding (more or less) to Rick's comment.  I'm not arguing with it, mind; just using it to gather my own thoughts.  So here's Rick's comment first:

This is an issue that I've always been somewhat interested in because of my old involvement in a Peyote religion case. In my one trip to the Fifth Circuit they reversed the dismissal of my case on the basis that genuine religious conviction may, in the right circumstances, require even the setting aside of criminal drug laws.

Mr. Justice Scalia, in the Smith case, blew that old understanding of religious freedom out of the water, in an opinion so outrageous that Republicans and Democrats, in a rare show of near-unity, reinstated, by statute, the old standard in the Religious Freedom Restoration Act.

It now looks like Scalia has won the "progressives," and the Republicans seem not far behind. There are differences between the federal statute and the state "me-too's," but I don't see them as terribly material. The prospect of boycotting Indiana for passing a law substantially similar to current governing federal law--a law which essentially states the principle of religious liberty as I learned it at law school from Archibald Cox--compels me to repeat one of your favorite phrases: "I'll retire to Bedlam."

And of course corporations have religion; and we all know what they worship.

I'm gonna exercise some very old mental muscles and see if I can parse out Smith from Hobby Lobby (the connection being RFRA):

Pre-Smith cases rejected 1st Amendment protection for discrimination (NTodd has the links) pretty much on the basis of "compelling state interest" (I haven't read into the cases linked, but I remember the cases on racial covenants in deeds, from ConLaw.  And yes, that was many, many years ago.).

Smith was not a discrimination case (which the law generally does not allow, although it allows religious institutions to discriminate in who can be a clergy, for example), but a question of banned substances.  Well, that's not the legal distinction, but as I say, the muscles are weak.  Anyway, a question of what the law forbids, and should it be allowed under circumstances involving religious belief/practice.

And 6-3, the Court said:  "No."

Then comes RFRA, which came under scrutiny in the Boerne case, where the Court found that RFRA appeared to create a substantive change in constitutional protections, exceeding rulings of the Court on the 14th Amendment(the 14th because the 1st applies to states only through the 14th, and the case was brought under RFRA against a state agency, i.e., a city of Texas.)  So RFRA, in brief, went too far.

And that's where things get very complicated.  Boerne led to RLUIPA, a law for religious owners of land (I ain't goin' further there), an amendment to RFRA in 2003 which applied it only to the Federal government; and a law for peyote smoking Indians:  the Religious Freedom Act Amendments in 1994.  But RFRA still exists, and now the question is:  how did Hobby Lobby v. Burwell lead to the Indiana version of RFRA?

States passed their own versions of the law, which is a bit odd, since they didn't really need to.  I mean, it sounds like a protection of peyote smoking Native Americans and churches that want a building permit.  But the former involves federal law on controlled substances, and the latter involves state law which RLUIPA is meant to deal with.  I have an interest (I find) in RLUIPA because I'm familiar with the church involved in a RLUIPA case.

St. John's UCC was a very old church located near what became O'Hare Airport.  O'Hare expanded and took over the property of the church, removing the old building to a new location in Bensenville, IL, the city next to O'Hare (I used to live there).  What was left behind was the church cemetery which, I was told, Chicago promised to preserve in perpetuity.  Well, as long as grass grows and rivers run, as we once promised the natives here.

Then O'Hare wanted to extend some runways, and the graves were in the way.  At that point we get into legal arguments about eminent domain v. land use regulations, and which laws RLUIPA covers.  St. John's lost the case, and their graveyard; and while there is a contention that RLUIPA grants religious organizations special privileges not available to other landowners, a case making that point has yet to make it to the Supreme Court.  Sadly, all the St. John's case proves is that a group of old white people (dear people, I knew them well) can't fight Chicago; especially when they don't even live in Chicago.

The meek shall inherit the earth, but only after the not-meek are through with it, I guess.

Still not sure how this gets us to Hobby Lobby, but somehow the Court decided that RFRA gives closely-held corporations the same protections for religious practice as are allowed to individuals.  As I said before, the answer there is to refine the definition of "person" in that statute.  Does Hobby Lobby somehow allow Indiana's clearly anti-gay version of RFRA?

No.  Well, IMHLO, anyway.

It doesn't because religious practice doesn't allow an individual to discriminate against another individual in business, at least.  We settled that issue with the Civil Rights Act cases.*  Churches can't be compelled to sanction same-sex marriages, but individuals can't be allowed to refuse service based on race, creed, national origin, or sexual preference.  Well, at least not where there is a statute protecting sexual preference as we protect race, creed, national origin, or gender.  These are not constitutional matters but statutory ones.  Discrimination is barred by statutory law, not by constitutional jurisprudence.  Banning discrimination is a compelling state interest, which means it is generally upheld by the courts.  So Indiana's RFRA is bad law that may yet come to a swift end.

The State is at least going to have trouble defending discrimination against homosexuals as a compelling state interest.  Because, to put it bluntly, if your rights stop at the end of my nose, this language seems to push my nose to somewhere in the back of my head:

“A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.”

Per Hobby Lobby, the courts cannot examine the legitimacy of a religious exercise claim, which gives the person under this law the freedom to make almost any religious claim they like.  That's going to run into limitations already recognized by law, or already existent in statutes; but it's also going to create a great deal of mischief where "religious freedom" is going to be used as cover for small-mindedness and sheer bigotry.

And if that's a return to the state of the law as Archibald Cox taught it, then the law is a ass.

* Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs.

Newman v. Piggie Park Enterprises, Inc. 

Addendum:  turns out there's a bit more to this, so let me revise and extend my remarks:

“This Indiana law, unlike federal RFRA, codifies the notion that for-profit corporations may avail themselves of the religious freedom rights formerly only accorded to individuals and religious non-profits,” Rachel Laser, the group’s deputy director, said in a statement. “In fact, it goes even further than the Hobby Lobby decision because it extends this right beyond closely held corporations to all corporations.”

The statement comes from the Religious Action Center of Reform Judaism (via Religion Dispatches).  It makes my closing remark about Archibald Cox look glib (it was), because clearly this RFRA is not a return to the state of the law before Smith; this is an extension of the law after Hobby Lobby.  Which law never was, IMHO, very sound.

ONE LAST THING which makes my first conclusion extremely glib and frankly unsound:

When we talk about RFRA, we aren't talking about the law in Indiana:

Although the Supreme Court has held that the federal religious liberty law applies to some corporations, the statute itself applies only to people—and, as Justice Ruth Bader Ginsburg pointed out in dissent, extending it to for-profit companies strains the meaning of the text. There’s no such issue with the Indiana law, though: This measure was designed to apply to businesses, like florists who dislike gay people, as a straightforward reading of its text makes clear.

But it’s really the next provision that gives the Indiana law its startling and unique breadth. The federal religious freedom law was designed to protect individuals from government overreach, like a state law barring ritual drug use by American Indians. Indiana’s law, on the other hand, lets people (and businesses) cite their religious freedom as a defense in private lawsuits, even when they’re accused of violating a civil rights law. In practice, that means a baker who is required by a nondiscrimination ordinance to serve all customers may cite her religious opposition to homosexuality in order to refuse service to a gay couple. Here, then, is the true license to discriminate: A secular baker is still bound by the law; a Christian baker has a special religious right to kick out customers she dislikes due to her religion.

Which means, I think, the courts either have to allow discrimination of any kind under Indiana law; or it has to throw this law out wholesale, since it is unenforceable as written, because it so blatantly conflicts with so much settled law.

It certainly isn't the state of the law when Archibald Cox taught it, that's for sure. 

In which I admit I'm still confused by RFRA

If I could just index these posts by picture....

Antonin Scalia wrote the majority opinion in Employment Division v. Smith (or, as Slacktivist calls it, which I get via NTodd, "Oregon v. Smith.").  The Court held that consumption of peyote was not privileged under the 1st Amendment, and that, we are told, led to RFRA.

Now I happen to be of the opinion that the Supreme Court is mostly a looney bin which comforts the comfortable and afflicts the afflicted, and the Warren Court of blessed memory was the anomaly, not the rule, in American history (just as we have been living through an anomalous era in which church attendance has become the overwhelming norm).  But I'm still not sure where Scalia was wrong (arguments against me gratefully accepted in comments below).  One thing I do know:  Slacktivist is a poor legal scholar.

Oregon v. Smith was a big departure from precedent and tradition. Think back to the Prohibition Era, when the country actually rewrote the Constitution in order to outlaw alcohol. But even at the height of Prohibition, neither the courts nor the public thought that ought to apply to the sacramental wine that was an essential component of the religious practice of millions of American Christians. But Scalia’s argument in Oregon v. Smith veered off from that earlier way of thinking. 

Um, no, there was no "thinking" on the part of the courts or the public about this.  The Volstead Act, which implemented the 18th Amendment (much as the Voting Rights Act implemented the 15th Amendment) explicitly excluded sacramental wine from its prohibition.  The courts and the public (except through their elected representatives) had nothing to do with it.  There was no "earlier way of thinking" represented by Prohibition from which Scalia could veer off.  In fact, Prohibition itself was the "veering off" of the earlier way of thinking.  The exceptions in the law were merely a practical political consideration.  The other statutory exception was whiskey "for medicinal purposes," which is how that phrase entered American culture, and lingers in some corners to this day.

And here's the irony of the situation, as created now in Indiana:

(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.... The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional [p873] protections. ....

(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 U.S. 398, 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. .... Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp. 882-890.

The key point there is "compelling governmental interest."  That's where anti-discrimination laws get upheld; there is a compelling governmental interest is not permitting discrimination on the basis of race, gender, national origin, or religion.  Which should mean I can't refuse to serve a Roman Catholic in my place of business if I'm, say, MO Synod Lutheran (the official position of the denomination is that Rome is the whore of Babylon).  Or does it?

PENCE: Well, let -- let me explain to you, the purpose of this bill is to empower and has been for more than 20 years, George. This is not speculative. The purpose of this legislation, which is the law in all 50 states in our federal courts and it's the law by either statute or court decisions in some 30 other states, is very simply to empower individual when they believe that actions of government impinge on their constitutional First Amendment freedom of religion. And, frankly, George, there's a lot of people across this country who -- you're looking at ObamaCare and the Hobby Lobby decision, looking at other cases, who feel that their religious liberty is being infringed upon and -- and The Religious Freedom Restoration Act at the federal level and all the states now, including Indiana, who have it, are simply about addressing that.

And again, if my religious freedom to discriminate against Catholics ( or Jews, or blacks, or what-have-you) is infringed upon, isn't it a restoration of my religious freedom to let me discriminate against the members of such groups?  Or is the problem only the "avalance of intolerance" that is gay marriage?

PENCE: George, look, the issue here is, you know, is tolerance a two way street or not? I mean, you know, there's a lot of talk about tolerance in this country today having to do with people on the left. And a -- but here Indiana steps forward to protect the constitutional rights and privileges of freedom of religion for people of faith and families of faith in our state and this avalanche of intolerance that's been poured on our state is just outrageous. You've been to Indiana a bunch of times. You know it. There are no kinder, more generous, more welcoming, more hospitable people in America than in the 92 counties of Indiana.

I had to quote it because You Can't Make This Stuff Up.  And, again, Loving v. Virginia didn't create an "avalanche of intolerance," but federal court decisions on gay marriage has.  I guess.

Not that Gov. Pence is any greater a legal scholar than Slacktivist; but he does seem to understand the intent of Indiana law pretty clearly.  And yeah, it is (or should be) indefensible as a matter of law.  Because the irony is, Indiana and Gov. Pence are making the case Justice Scalia made in Smith: they want to enmesh judges in an "impermissible inquiry into the centrality of particular beliefs or practices to a faith."  Although that seems to be the logical outcome of the holding in Hobby Lobby.  Or rather, I don't quite see why it can't be; it isn't, as Justice Scalia said in Smith, the required outcome; but I can see where it is the logical one, especially because it is being used that way ("Duh!").  And I still think the solution is to fix RFRA.

But I'm not holding my breath on that happening....

P.S.  Is the Indiana law meant to enshrine discrimination against "the gay."  No question about it, even without the bizarre statements of Gov. Pence:

Indiana’s is the only law that explicitly applies to disputes between private citizens.

And:

... the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.

Which makes that "avalanche of intolerance" that has been poured onto Indiana look quite a bit different.  It is also clear this state law is the child of Hobby Lobby: the family resemblance is unmistakeable.

Why ask why?

Adding to what I said below:

To this day, the motive for the pilot’s actions remain unclear, though rumors have circulated online that he was struggling with domestic problems. Mozambique has still not issued a final report on the crash. Yet what little we do know about the case does line up eerily with what little we know so far about the Germanwings crash: the perpetrator who waits until he is left alone in the cockpit, then appears to lock his colleague out; the use of autopilot to command an orderly descent down into the ground; the resulting high-speed crash that leaves the aircraft ripped to shreds, without the slightest possibility of survival.

An air of mystery surrounding the incident is not unusual in cases of what appear to be pilot suicides. Such a horrific act, in which an individual not only takes his only life but slaughters the passengers who have been put into his care, defies easy psychological classification. Suicide notes are rare, as are words of explanation on cockpit voice recorders. With the pilot dead, and the scene of the crime destroyed, all that remains is the unsolvable riddle: Why?

"Lord, I can't go back there..."

I just wanna ask Mike Pence:

Can I open a business in Indiana and refuse to serve blacks because my religion tells me to have nothing to do with them?

Or is that kind of religion not recognized as valid anymore, but a religion that says I can discriminate against homosexuals, still is?

And does that mean the state of Indiana is now in the business of deciding which religions are acceptable, and which aren't?

And is that really where the state of Indiana wants to be in defending "religious freedom"?  Because what if I want to discriminate based on gender?  Or age? Or national origin?  Or religious belief?  I might have trouble coming up with a religious reason to discriminate against blacks, now that the Mormons have changed their minds on the subject; but I can pretty easily come up with the rest of those in several mainline denominations.

Will that religious belief be acceptable in Indiana?  And if not, why not?  Ain't I free to believe?