Free Speech: From the Left, Right, and Center

The Muhammad Cartoon Contest has resulted in a national conversation about the nature of free speech. The usual suspects have emerged, but there have been some unexpected turns as well. I could never have predicted that a right-winger like Bill O’Reilly would condemn Pamela Geller, and I was pleasantly surprised to see the flaming liberal Chris Hayes come out in her defense with no apologies — not a single parenthetical disclaimer to distance himself from her politics. He’s a better person than I am.

In the spirit of my Thanksgiving post last year, I’ve assembled three video-clips about free speech. They’re short (around 5 minutes) and to the point, and I’ve chosen them to show that clear-headed thinking on this subject, while increasingly rare, can be found on all parts of the political spectrum — left, right, and center. That, at least, is encouraging.

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From the left: Bill Maher educates his own tribe.

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From the right: Robert Spencer speaks at the Muhammad cartoon event which he co-hosted.

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From in-between: Sam Harris speaks to the moral failure of publishers who chose not to print the Hebdo cartoons.

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What the Texas Cartoon Event Was, and Wasn’t, About

It wasn’t about needlessly provoking or offending people, nor cultural arrogance. It was about some long overdue cultural assertiveness.

The “cultural arrogance” is that of those who want to kill cartoonists in the name of blasphemy laws which the cartoonists don’t subscribe to. That’s the infliction of one culture over another which liberals should be fulminating against, but seldom do.

Every western outlet that refused to publish the Charlie Hebdo cartoons back in December was catering to Islamic blasphemy laws, and every western citizen who is now criticizing the Texas cartoon event is doing the same.

We don’t criticize the Broadway play, The Book of Mormon, for outrageously decimating the Mormon faith. No: we praise a song like this as pure genius. (And bust our guts laughing.)

And we certainly don’t summon liberal outrage over “hateful” and “religiously demeaning” cartoons like the following, which shows Moses high-fiving Jesus as they’re jacked off by Ganesha, who in turn pounds Buddha up the ass:

The Texas cartoon event wasn’t about needless offense or arrogance. It was about reinforcing a basic principle that is widely acknowledged by all the world’s faiths save one. Personally, I’m all for self-restraint and respecting another group’s sensibilities. But not when it’s the self-restraint of fear, and not when that group is continually accommodated by a different standard.

The event wasn’t even about drawing Muhammad per se. It’s simply that drawing Muhammad is a point where Islam draws the line, and so that’s the obvious place where First Amendment advocates like Robert Spencer and Pamela Geller make their stand. They should be applauded for doing so. Faulting them for being too provocative is as gross as blaming loosely-dressed rape victims. If there are Muslims who resent their faith being ridiculed, then tough rocks. It’s up to them to join the rest of the world — and to learn the virtues of real tolerance in a genuinely pluralistic society.

“Be innocent as doves to genuine gay couples, and shrewd as snakes to LGBT activists trying to burn you”

Michael Bird doesn’t believe in same-sex marriage. I do. What I find interesting is that he is able to promote a supportive approach despite his evangelical beliefs, and by appealing to an array of biblical texts. In God, Pastries, and Religious Freedom, he writes:

“My own view is that religious freedom is for the common good and in reflex those who enjoy that freedom ought to act for the common good. Faith communities tend to be benevolent and profess to exist for the sake of others, not for the sake of themselves. At least for Christianity, that means putting the needs of others above your own, exercising love at one’s own expense, and bearing the cost of other peoples’ burdens.”

Which is great. But is it theologically credible? Or would Michael Bird simply be laughed out of the room by the vast majority of his fellow evangelical Christians? On Facebook and his blog, he has received applause, so that’s a good sign he’s not spitballing.

On the one hand, Bird affirms the necessity of religious freedom:

“I think we can agree that people’s religious freedom should be protected and no-one should be coerced into doing something their religion prohibits. It would be wrong to walk into a halal butcher and demand that they provide you with three pounds of pork chops. To demand a Jewish baker make a birthday cake for Adolf Hitler would be bastardly. To ask a Christian baker to bake a cake with the slogan, ‘Jesus Christ Superfraud’ would likewise be horrible. All of us, the religious and the non-religious, have our own sensitivities, and most of the time we can work around them without too much inconvenience to anybody. This is what it means to have a pluralistic society and a multi-cultural work-place. Secularists who insist that religious folks must leave their faith at home simply don’t understand that religion is a way of life and not just an expendable fashion accessory. It is also a mockery to fairness and tolerance if people’s religious values are not accommodated as far as can reasonably be expected in the marketplace.”

Quite right, and as I said two days ago, in half-agreement with Justice Antonin Scalia, it is unreasonable to expect rabbis and ministers to conduct marriages not in accord with their beliefs. Opposing same-sex marriage for religious reasons doesn’t necessarily imply bigotry (though it often unfortunately does).

On the other hand, Bird also acknowledges that religious freedoms have to be balanced against new covers for discrimination:

“The question remains does this commitment to fairness in the workplace and freedom of religion in the marketplace extend to the right to discriminate and the right to refuse someone your business? Does a Christian baker have the right to refuse to bake a wedding cake for a gay wedding? Does a Muslim caterer have the right to refuse to cater for a Bar Mitzvah at the local synagogue? Does a Hindu taxi-driven have the right to refuse to pick up a person wearing a shirt saying, ‘Bob’s Steakhouse’? At one level, we could say that the refusal of business is their loss, but on another level, the person refused would feel more than merely inconvenienced, probably a little alienated. Think of the wider consequences too. Do we want doctors turning patients away because of their ethnicity under the guise of religious freedom? Do we want cafés refusing to serve customers because of their religious apparel, their gender, race, disability, diet, or because of their marital status? The problem is that religious freedom might become a convenient cover for new forms of discrimination and even old forms of segregation.”

Right again. So this is how Bird applies his (conservative, evangelical) faith to the common good — or how he “exists for the sake of others rather than himself”, and puts the needs of others above his own, exercises love at his own expense, etc. If he ran a bakery and a gay couple wanted a wedding cake,

“I’d bake that cake to the glory of God and be the nicest possible baker they’d ever met, not despite being a Christian, but precisely because I am one. I want to try to be like the Apostle Paul and be all things to all people so that I might save some (1 Cor 9:22). At the end of the day, the best witness Christians have to the world is the quality of their work and the compassionate character of their service… The Christian Scriptures point us towards such a position. God told Jeremiah that while he was in exile in a pagan city he was to, ‘Seek the peace and prosperity of the city to which I have carried you into exile. Pray to the LORD for it, because if it prospers, you too will prosper’ (Jer 29:7). In other words, seek the betterment of others and blessings for others. Jesus commanded his disciples to love their neighbours and their enemies, presumably even if your neighbour is gay and even if your perceived enemy is an LGBT activist (Matt 5:44; Luke 6:27, 35). The Apostle Paul could say to the churches in Corinth – and Corinth was a city full of pagan religion and sexual excess – ‘Do not cause anyone to stumble, whether Jews, Greeks or the church of God–even as I try to please everyone in every way. For I am not seeking my own good but the good of many, so that they may be saved’ (1 Cor 10:32-33). None of this requires being a door mat, surrendering your religious freedom, but if you are a Christian then it does entail a willingness to struggle with the messiness and ambiguity of being in the world but not of the world. Opening a stall in the modern day agora will mean encountering people from all walks of life, people of all faiths and none, and striving to be compassionate to all while remaining faithful to one’s religious convictions.”

This application of the gospel carries credible force, much like that promoted by, say, Pope Francis. What’s key is that a counsel of tolerance, accommodation, and good will can be readily derived from the Christian scriptures. One might debate and split hairs; and obviously not every Christian will applaud Bird’s theology. But large numbers of them do. I’ve often said that most of the toxic ideas found in most of the world’s major religions (save one) carry within themselves the seeds of their own transformation. Christianity has centuries of homophobic intolerance to deal with, thanks largely to Leviticus and Paul. But Paul himself can be used to extend his own ethic of charity, not to mention his savior’s.

Finally — as if all this weren’t impressive enough — Bird ends his post by firing a shot at the PC police:

“Of course, if some LGBT activist came to my bakery and ordered a cake just to humiliate me by making me do something against my religious beliefs or to find a way to seek punitive legal damages against me, then I’d agree to bake the cake, but I’d inform them in advance that I’m donating their money to either the most far right politician I could find or to some gay ministry program run by Catholics or Southern Baptists.”

Good for him. I might be inclined to do something similar in his shoes. My church (Unitarian Universalist) takes same-sex unions for granted, but I have no more use for PC hypocrites than Michael Bird does. “Be innocent as doves to genuine gay couples, and shrewd as snakes to LGBT activists trying to burn you,” is an evangelical position which I can certainly applaud from the sidelines.

Supreme-Court Rainbow?

The preliminaries in Obergefell vs. Hodges were interesting to watch. I’m predicting 6-3 in favor of the constitutionality of gay marriage: 4 guaranteed and 2 swing.

We need reminding, especially with a hot-button issue like gay marriage, that the role of the Supreme Court is not to legislate nor to block questionable legislation. It is simply to determine what laws are constitutional. Here is what the justices — eight of them; one remained silent — say.

Update (6/26/15): The result was 5-4. My predictions below were correct except for Roberts who did not swing. See here for analysis.

THE DISSENT (3)

Antonin Scalia. Everyone hates this guy, and not without warrant, but he does get some things right, and — though I hate to say it — he’s the sharpest mind on the court. If not for his swing-vote with the liberals in Texas vs. Johnson (1989), we wouldn’t today have the right to burn the American flag. He may be an arch-conservative, but he cares keenly about civil liberties. In this case, he clearly wants to preserve the right of religious pastors to conduct marriage according to their creed. Thus, he says, the question of gay marriage should be the state’s decision. Allowing states to decide the issue would allow them to make exceptions — for example, that gays can be married, but ministers who don’t believe in gay marriage cannot be required to marry them. If, on the other hand, the supreme court rules that gay marriage is a constitutional right, ministers won’t be able to opt out.

On the face of it, his argument is reasonable, but Attorney Mary Bonauto and Justice Elena Kagan shot it down. Under the First Amendment, according to Bonauto, a clergyperson cannot be forced to officiate at a marriage that he or she does not want to officiate at. Kagan likewise pointed out there are many rabbis who refuse to conduct marriages between Jews and non-Jews — even though we have a constitutional prohibition against religious discrimination — and those rabbis get all the powers and privileges of the state. Scalia’s objection really doesn’t hold.

Samuel Alito. I have a grudging respect for Scalia but certainly not Alito (his lone dissent and contempt for the First Amendment in Snyder vs. Phelps (2011), disqualifies him from serving on the court in my opinion). His objections carry less force than Scalia’s. He asks that if two people of the same sex can marry, then why not four people of opposite sexes? The institution of marriage in America takes two partners for granted. More than two raises issues that state marriage laws don’t address and aren’t equipped to handle. Put simply, polygamy isn’t an analogy here.

Alito also claimed that denying same-sex marriage doesn’t necessarily imply homophobia. There have been cultures, he says, which were very tolerant of gay sex, but which also didn’t allow gay marriage, like ancient Greece and medieval Japan. That’s obviously true, but a rather laughably stupid observation, in view of the fact that gay sex in such warrior-cultures tended to reinforce roles of power and subordination. Alito, as usual, is the tool of the supreme court.

Clarence Thomas. He was the only justice who had nothing to say, but then he’s a nothing judge who should never have been appointed. (He was chosen by the first Bush only because he was black, to replace the retiring black Thurgood Marshall.) It’s a guarantee he will vote against gay marriage, for little or no good reason. With Scalia, he filed the blistering dissent months ago, against the other justices’ rejection of Alabama’s plea to say no to gay marriage in the state until the supreme court issues its own decision.

THE SWING (2)

John Roberts. I have considerable respect for our chief justice. His swing-vote with the liberals in National Federation of Independent Business vs. Sebelius (2012) declared Obamacare constitutional, which I believe cut strongly against Roberts’ personal feelings for the health insurance mandate. Indeed, at first he was considering that Obamacare was unconstitutional under the commerce clause, but then ultimately recognized that it was a constitutional exercise of Congress’ taxing power. (And make no mistake, Obamacare is certainly a tax: it’s an amendment to the Internal Revenue Code; it’s calculated based on a percentage of adjusted gross income or a fixed amount, whichever is larger; it raises revenue; it serves the general welfare, and is not a criminal penalty in disguise.)

Roberts may go “against himself” again. As with Obamacare, he doesn’t seem wild about the idea of gay marriage. He voiced strong concerns about changing how the institution of marriage has been recognized for a long time, as well as the impact of shutting down state-level debate with a supreme-court ruling. On the other hand, he seems to entertain doing exactly that, if the question can be resolved by simple reference to sexual discrimination (rather than sexual orientation). “If Sue can marry Joe,” he asks, “but Tom can’t marry Joe, isn’t that sexually discriminating against Tom?”

Anthony Kennedy. On the one hand, this is the guy who wrote the decision for Lawrence vs. Texas (2003), which recognized a fundamental right to have sex with a partner of one’s choice. On the other hand, Kennedy is like the chief justice — worried about changing a definition of marriage that has been the same for “millennia.” I suspect he’ll emerge in favor of gay marriage, given his consistent concern about preserving the dignity of the relationships between gay couples and families.

IN FAVOR (4)

Ruth Ginsburg. Ginsburg got in the best zinger when she responded to the idea that marriage is for procreation: “Then why do we allow old people to get married?” Score.

More significant was her response to the concerns of other justices (Alito especially, but also Roberts and Breyer) that allowing gays to marry would transform the definition of marriage. Ginsburg says the definition of marriage has already been transformed — after the women’s movement led to the eradication of laws that treated wives as the property of their husbands. Marriage has become increasingly inclusive, and so gays deserve the same equal treatment that women and other previously disadvantaged groups now receive. A reasonable argument.

Sonya Sotomayor. Sotomayor takes the opposite approach of Ginsburg, focusing on marriage more as a static fundamental right, rather than an evolving one. For if marriage is fundamental, she says, it must be extended to all citizens on equal terms: “The right to marriage is embedded in our constitutional law. It’s a fundamental right. You can’t narrow it down and say, ‘Is gay marriage fundamental?’ or ‘Is black-and-white marriage fundamental?’, etc. That, for me, is as simple as the question gets.”

Elena Kagan. It’s a given that she will vote for gay marriage (she has presided over gay weddings), and like Ginsburg she refuted idiotic objections. To the claim that banning gay marriage encourages responsible pro-creation among straight people, she asks whether we should, by implication, ban marriage between straight people who don’t want to have children.

Stephen Breyer.I don’t believe for a moment that Breyer will vote against gay marriage. His initial bluster over the supreme court being forced to decide an issue that should be left in the hands of the states was mere token posturing. I suppose one of the liberal justices had to make a feeble show of resistance, and this was it.

His next observation obviously showed his true colors, and echoed Sotomayor: “Marriage is about as basic a right as there is; that the Constitution and Amendment 14 does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law. To take a group of people where so little distinguishes them from the people you gave the liberty to, and to deny them participation in this basic institution — that violates the 14th Amendment.”

Rainbow Verdict?

More than likely. From a constitutional perspective, it’s hard to deny gay couples the same legal benefits enjoyed by straights. Bringing up procreation is meaningless (unless we’re seriously going to entertain denying marriage to old people and straights who don’t want to, or can’t have, kids).

On the dissenting side, Scalia is correct that religious pastors should not have to marry gay people if that conflicts with the pastor’s beliefs. Realistically, I don’t see that being a problem.

It hinges on Roberts and/or Kennedy, and they will probably swing. Roberts is like the retired David Souter — capable of rendering decisions against his interests in favor of constitutional elements — and Kennedy has consistently called for extending to gay people constitutional dignities.