Chronicles, May 2015

The latest issue of this Old Right journal bears Geertgen tot Sint Jans’ (circa 1465-circa 1495) lovely painting “The Holy Kinship” on its cover.

Last month’s issue featured an article in which Claude Polin traced the intellectual influence of Calvinism in the early USA.  A letter in this month’s issue objects that some of the Calvinist ideas Professor Polin discussed there were not representative of John Calvin’s own thinking.  Professor Polin’s response to this is a succinct and admirable statement of one of the basic tenets of intellectual history:  “Either there never was any true Calvinist besides Calvin, or Calvin generated an attitude that was not his, but was logically derived from his writings.”

Steve Sailer (known to some who read this blog simply as “the hated SAILER”) writes about Thomas Jefferson’s contributions to the system of land ownership and property registration in the early USA, a system which Mr Sailer argues has given the USA a crucial advantage in economic development.  Mr Sailer’s argument that the abstract nature of the grid plan along which Jefferson led the USA’s lands to be surveyed made for a far more efficient structure than the more concrete metes-and-bounds system it replaced makes a odd counterpoint to Chronicles‘ editor Thomas Fleming’s column, in which he declares Jefferson’s similarly abstract, anti-historical views on inheritance to be of a piece with the exaltation of the nuclear family that has enabled the destruction of traditional kinship bonds and therefore of traditional community structures and traditional gender roles in today’s world.  Both Mr Sailer and Dr Fleming agree that Jefferson’s ideas have led to the rise of capitalism, but while Mr Sailer’s chief concern is extolling the prosperity that capitalism has brought, Dr Fleming’s emphasis is on capitalism’s destruction of those bonds and identities that have traditionally ennobled human life.

Clyde Wilson, editor of The John Calhoun Papers and an unreconstructed defender of the Old South, may be the last person you would expect to speak up in favor of the view that agents of the US government killed Martin Luther King, Junior, yet that is precisely what he does in his review of John Emison’s The Martin Luther King Congressional Cover-Up.  Professor Wilson seems to believe that the Central Intelligence Agency orchestrated the assassination, pointing out that the agency had a file on small-time criminal James Earl Ray, the supposed gunman, and that the two federal judges who were, “years apart,” poised to reopen the case died of sudden heart attacks, which are “a standard tool of the CIA.”  Professor Wilson also refers to two other notorious 1960’s-era activities of the American national security state, Operation Northwoods, a Joint Chiefs of Staff plan to carry out terrorist acts in the USA and blame them on Fidel Castro, and Cointelpro, a Federal Bureau of Investigation project overseen by W. Mark Felt, who was among other things the FBI’s liaison with the Joint Chiefs.  For my part, if there was a high-level conspiracy to kill Martin Luther King, I suspect Mark Felt was its mastermind and the offices of the Joint Chiefs were its nursery.  Professor Wilson closes his review with a lament about all the crimes whose true provenance we will never know because high US officials saw to the destruction of evidence, the intimidation of witnesses, and the railroading of convenient suspects; his first example is the assassination of President Abraham Lincoln.  Many documents connected with the assassination of Martin Luther King are sealed until 2029; until they have been opened and examined, I think it is premature to put the King assassination into the same baleful category.

Scott Richert writes about Indiana’s “Religious Freedom Restoration Act,” which, unlike the federal law and the many state laws of the same name, does not apply only to civil suits to which the government is itself a party, but to a wide variety of lawsuits between private citizens.  Mr Richert, responding to the widespread fear that the law would enable unjust discrimination against sexual minority groups in Indiana and the consensus in favor of legal protection for such groups against discrimination which this fear revealed,* argues that the growth of civil rights protection for sexual minorities is the result of a strategy on the part of big businesses in the USA.  These businesses want the benefits of a reputation for friendliness to sexual minorities, but don’t want competitors to carve out a niche in which they could exploit any costs that such a reputation might entail.  So, big businesses want to advertise their own “gay-friendly” programs, while outlawing or stigmatizing any “unfriendly” programs competitors might come up with.

*I commented on the Indiana law here when it was first passed.

Indiana becomes the center of the universe, for a little while

This is where Indiana is, in case you’ve been wondering.

Last week the state of Indiana made the national news by passing a law whose sponsors named it “The Religious Freedom Restoration Act.” Opponents of the claim that this name is misleading, both because it does little to promote religious freedom and because it is significantly different from the US federal law known by the same name and from the laws modeled on that federal law that are on the books in many other states.  Because the law is expected to protect businesses that refuse to serve members of sexual minority groups, advocates of the rights of such groups have protested vigorously against it.

The two things about this controversy I’ve read that I’ve found most helpful are an essay posted on Facebook by lawyer Carolyn Homer Thomas and a blog post by Eve Tushnet.  As the weeks pass, I’ll probably see good things in print, but for now the story is fresh enough that the internet is the richest source.

Carolyn Homer Thomas writes that Indiana’s law differs from the federal law in two key ways:

First, SB 101 expressly recognizes that for-profit businesses which “exercise practices that are compelled or limited by a system of religious belief held by…the individuals…who have control and substantial ownership of the entity” qualify for religious exemptions. This means that there is NO Indiana regulation that a business cannot theoretically trump by saying their religion forbids compliance. What’s rightfully getting the most attention (because of the gay rights movement) is the risk that businesses will try to trump non-discrimination and employment laws. This is because, until the Hobby Lobby case, most people had understood the earlier federal and state RFRAs to only protect individuals or non-profit religious institutions, like churches and charities. But the Indiana RFRA now allows even for-profit corporations to exercise religion.

“This means that there is NO Indiana regulation that a business cannot theoretically trump by saying their religion forbids compliance.”  A statute that, interpreted by its plain language, would dismantle the entire civil law system of one of the fifty states would seem to pose a threat to every law-abiding citizen of that state.  I can see that members of sexual minority groups are among those who are especially vulnerable that threat, and so it is reasonable that they should be among the major focuses of attention as Hoosiers* try to figure out how to get themselves out of the mess their state legislature and governor have landed them in.

Carolyn Homer Thomas goes on to identify another major problem with the Indiana statute:

Second – this is the most fascinating aspect of the whole thing to me as a religion law geek – SB 101 only protects a business who is actively “exercising” a practice that is “compelled or limited by” religious belief. This means that the religious belief cannot just be a preference — it has to be theologically mandated. So, a business who suddenly changes course, or comes up with a fairly weak theological reason for its action? That is a ground in court to reject their exemption. By contrast, SB 101 protects ANY “exercise of religion, whether or not compelled by, or central to, a system of religious belief” for individuals and non-profits. So it will be harder for businesses to get exemptions than individuals. Indiana will require a much higher showing of religious conflict before it will protect businesses. (I am going to bracket the fact that this difference presents its own Constitutional problems – courts aren’t supposed to, under the Establishment Clause, evaluate theology.)

Giving state courts the power to decide what does and does not count as a worthwhile religious belief would seem to be a pretty big drawback in something called “the Religious Freedom Restoration Act.”

Eve Tushnet, as a conservative Roman Catholic and an out (albeit celibate) lesbian, has a unique perspective on this issue.  Because of her religious beliefs, she understands the scruples of those whose consciences won’t allow them to participate in same-sex weddings:

1. Cooking is an art, cakes are art, compelled creation of beauty is compelled speech. I feel like the denial that cakery is/should be expressive, that food bears meaning, is somehow Gnostic and class-biased (or sexist? if your grandma could do it, it must not be art?), but maybe that’s self-parody on my part. Anyway beauty + meaning, to me, pretty clearly = art. And photography is even more obviously art, right?

At the same time, because of her sexuality, she also understands dimensions of the issue to which other social conservatives are blind:

2. Still… I wonder how different this debate would look if more gay people felt confident that Christians know how common discrimination, harassment, and violence are in our lives. I mean I didn’t really know this myself for a long time. I was very sheltered. The past few years, in which I’ve gotten to know lots of gay people from different backgrounds (mostly Christian, mostly celibate, it turns out this doesn’t protect you–not that any of my friends asked it to), have been eye-opening for me.

And quite often I find straight people are even more surprised than I was to hear about the frequency and sordid creativity of anti-gay acts. I hope I’m remembering this right, but at a retreat I was at, the leader asked how many of the non-straight participants had either experienced violence as a result of sexual orientation ourselves, or had close friends who had experienced this violence. And I think all of us had. (Close friends, in my case.) And the straight people were shocked. When I tell this story now, people’s eyes widen–I mean, straight people’s eyes widen.

The support major corporations and prominent media figures have given to the protests against Indiana’s law has convinced social conservatives like Rod Dreher that America’s power elite is solidly in favor of the rights of sexual minorities, and that he and his fellow dissenters are headed for a future on the margins of society.  Mr Dreher writes, “On this issue, the left has the media, the academy, much of the legal profession, and corporate America on its side. That’s a powerful coalition. It is the Establishment. And you will not escape its view.”  At The Federalist, Robert Tracinski goes even further, declaring that “The Left Has No Concept of Freedom,” and that those leading the charge against the Indiana law portends a “law of the state [that will] expand so much that it leaves the individual no space in which he may determine his own private principles of action.”

Ms Tushnet has a response ready for Messrs Dreher and Tracinski:

We have a sharply bifurcated culture, where like Glee is on tv and Tim Cook is a gazillionaire, and yet countless kids are being harassed, berated, and thrown out of their homes for being gay.

I am not convinced most straight people know that stuff, and think it’s awful. I am definitely not convinced that most gay people trust that our heterosexual brethren know and reject that stuff. That’s some of what you’re hearing in the “slippery slope” arguments, Can they refuse to carry us in the ambulance? Can they kick our family out of the restaurant?

Those slippery slope arguments are pretty hard to forget when you think about small towns and rural areas of a sort that do exist in Indiana, places where public space consists of a handful of businesses, a few fundamentalist churches, and a couple of government offices.  If you live in one of those areas and the people running those businesses decide that it isn’t worth their while to be seen with the likes of you, your life could become very tightly circumscribed very quickly.

I’ll conclude with a very clever tweet from Michael Brendan Dougherty.  Mr Dougherty, who has taken a rightist stand in this debate, posted this:

Well of course they do.  That’s why mainstream political discussion had so little room for the rights of sexual minorities until recent times; most people can’t really imagine themselves wanting to exercise the right to form a same-sex relationship, or to be transgender, or to live any of the other lives that we now group together under the LGBTQI banner.  And it’s also why every other minority group, including religious minority groups, has a hard time finding a hearing from the general public.   I consider this tweet to be very clever because, in a single rhetorical move, it creates a category into which both the same-sexer who has to wonder whether the paramedics will refuse to put her in the ambulance and the photographer who has to wonder she’ll be sued out of business if she declines to take pictures at a same-sex wedding naturally fall.  So he, like Ms Tushnet and Ms Thomas, manages to open a space in the debate for a human voice.

*That’s what people from Indiana are called, “Hoosiers.”  No one knows why, though there is some evidence supporting a theory connecting it with an early-nineteenth century slang term from Yorkshire, “howzher,” which meant “oaf.”  Anyway, though the word may have originated as an insult, people from Indiana insist on being identified as “Hoosiers,” and if you call them “Indianans” they genuinely do not understand what you mean.