Question One:
IF A STATE GOVERNMENT MAY NOT COMPEL A JEHOVAH WITNESS TO PLEDGE ALLEGIANCE TO THE FLAG, AGAINST HIS RELIGIOUS BELIEFS, AS A CONDITION TO ATTENDING PUBLIC SCHOOL, THEN WHY MAY A STATE GOVERNMENT COMPEL AN EVANGELICAL CHRISTIAN TO PHOTOGRAPH A SAME-SEX COMMITMENT CEREMONY AGAINST HER RELIGIOUS BELIEFS, AS A CONDITION TO OPERATING A PHOTOGRAPHY BUSINESS?
Other than the sympathies of the members of the judiciary, I can ascertain no principled distinction between these two cases. If objective principles were applied to both cases equally, both cases should have had the same outcome: freedom from State compulsion to act against one's desires and religious beliefs. The principles which should protect us against such compulsion (which were applied to the student who didn't want to say the Pledge, but not to the photographer who didn't want to photograph an event she disapproved of) include the following:
-"[N]o official, high or petty, can [under our constitution] prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." (Justice Jackson, W. Va State Board of Education v. Barnette (1943)[emphasis added].)
-"[G]overnment coercion of moral agency is odious." Gilardi v. U.S. (D.C. Cir. 2013).
-"Penalties are impertinent" if they are used to "compel men to quit the light of their own reason, and oppose the dictates of their own consciences." (John Locke 1689).
-"Government may neither compel affirmation of a repugnant belief [i.e., a belief a particular citizen believes to be repugnant] nor penalize or discriminate against individuals because they hold religious views abhorrent to the authorities." Justice Brennan, Sherbert v. Verner (1963).
The creation of so-called "Human Rights Commissions" in some of the states is perhaps one of the most misguided political movements of my lifetime, being based on the Orwellian notion that the primary threat to our human rights is our fellow citizens, not our government, to whom we should look for protection from such abuses. It was therefore inevitable that the "petty officials" of one of these absurd bodies, the New Mexico Human Rights Commission, would prove where the true threat to human rights lies, and begin violating the Constitutionally guaranteed liberties of New Mexico's citizens, and issue an "impertinent penalty" against a photographer who declined on religious grounds to accept the patronage of a same-sex couple who wanted her to photograph their committment ceremony. How exactly was this decision upheld by the New Mexico Supreme Court? On what principled basis did they determine that the commission, and their own court, could "force" the photographer "by . . . act" to participate in the new political orthodoxy of our time, requiring all of us to celebrate homosexuality and same-sex weddings, and thereby compel affirmation of a belief the photographer felt was repugnant, and, literally "penalize" the photographer "because" she held "religious views abhorrent to the authorities" on the commission? On what basis were the monetary penalties they imposed upon the photographer, compelling her to "quit the light of her own reason and oppose the dictates of her own conscience" appropriate?
These are of course silly questions. The court's decision was an exercise of pure political power, unmoored from any objectively applicable principles whatsoever. Indeed, it was a refutation of the very idea that such objectively and universally applicable principles should ever apply, especially when there is a political victory to be won, liberal pieties to be upheld, and blasphemous political heretics to be punished.
Whatever your views on same-sex marriage, if you are an American, this should scare you.
Question Two:
WHY DO SO MANY OF THE SAME PEOPLE WHO THOUGHT CLIVEN BUNDY AND HIS ANTI-RULE OF LAW SUPPORTERS IN BUNKERVILLE WERE HEREOES, NOW ARGUE THAT MICHAEL BROWN, AND HIS ANTI-RULE OF LAW SUPPORTERS IN FERGUSON ARE THUGS?
Again, I can see no principled distinction between certain groups of citizens' very different reactions to these two cases.
Cliven Bundy used the threat of physical violence to continue stealing from a neighboring landowner. Michael Brown used the threat of physical violence to steal from a neighborhood shop owner. If stealing is wrong, what's the difference between these two events? If using the threat of violence to obtain something to which you are not legally entitled is wrong, then what's the difference? Is it because Cliven Bundy's victim is almost universally despised: the Federal Government? So would that make it OK for me to steal from someone you really dislike?
Cliven Bundy's supporters rallied to prevent the enforcement of a court order. Michael Brown's supporters gathered to express outrage against the decision of a grand jury. Both groups felt their cause was so just that they could ignore the rule of law and act outside the system of ordered liberty already available to us to fight for political causes, and that winning a political battle is more important than fighting that battle within established rules designed to prevent our political arguments from descending into violence.
Both groups ignored readily available court decisions written by objective third parties setting forth the essential facts of the cases, in favor of highly spun, politicized narratives which were largely based on private fantasy, available on their preferred television channels, radio talk shows, or online comment boards. Both groups gave in to absurd leaps of logic: Cliven Bundy's statements that the Federal Government does not exist, and has no right to own land, such that only Clark County Nevada can charge him a grazing fee being accepted by his advocates at face value, when, in fact, if that were true, it would mean the Treaty of Guadalupe Hidalgo is void and he should be paying his grazing fees to Mexico, which is also owed a whole lot of back property taxes from the rest of us; Michael Brown's supporters walking around with their hands up in ridiculous "don't shoot I'm unarmed" poses that have nothing to do with anything that occurred that day.
Brown's supporters burned down local Ferguson businesses and hurt the economy of Brown's own home town. Bundy's supporters repeatedly called early morning bomb threats into local Mesquite hotels (whose owners were adjudged guilty, French Revolution style, of insufficient devotion to the cause, by having allowed BLM agents to stay overnight), forcing them to evacuate their guests and causing economic harm to Bundy's own home town.
Media outlets have inflamed and agitated Brown supporters and caused violence, rioting and looting. Bundy called upon every wanna-be Timothy McVeigh in the country to come support his cause, and two of his guests were sufficiently agitated and inflamed to return home from Bunkerville and murder two police officers and a civilian.
In what universe is there any moral distinction between Brown and his Ferguson supporters, and Bundy and his Bunkerville supporters? From where I'm sitting the only distinction seems to be based on skin-color, political affiliation, and whether you get your news from Fox or MSNBC/Comedy Central.
Question Three:
WHY CARE?
There are three paths a society can take: tending a bit too much towards anarchy, or tending a bit too much towards tyranny, or trying to stay on the proper Aristotelian median, and maintaining some semblance of ordered liberty. A society based on the right median road, maintaining ordered liberty, is the type of society most likely to produce a prosperous, happy, and self-sufficient people, capable of reaching their best potential and finding meaning in life. It is also the most fragile form of society and government.
To be maintained, ordered liberty requires that a society's political players (which, in a democracy, is all of us) recognize, and adhere to, certain sound principles, transmitted to each new generation. These include: restrictions on the government's right to compel actions in violation of conscience; respect for the rule of law based on procedures and laws developed objectively and intended for universal application to various types of disputes; equality in legal treatment; the applicability of the law even to its creators and executors; separation of powers to create checks and balances upon governmental actions; free market economics; freedom of the press; and other similar principles.
When a society untethers itself from universal and objectively applicable principles, because its citizenry, judiciary, or other governing agents, come to believe that the ends justify the means as to certain political causes and battles, which are more important than maintaining political principles, the fragile system of ordered liberty quickly devolves and is replaced by a form of politics completely inconsistent with ordered liberty: the politics of arbitrary and capriciously exercised power, leading to pervasive corruption and a cynical citizenry which no longer has any basis for patriotic loyalty to its society, but is instead dominated by individuals seeking to plunder the governmental commons for their own private interests. The anarchy that follows leads to the rule of local militias and warlords in rural areas, and mob bossess and protection schemes in urban areas. You can see it in any third world country you may happen to visit: the gated and heavily guarded compounds of the few powerful and prosperous, with armed guards playing the same role developed by mercenary knights who guarded medieval moted castles, surrounded by the squalor of the peons. The only answer to such anarchy is the eventual establishment of tyranny. Some countries get there quicker than others. One of the signs that your society is walking along that road is when you find yourself perplexed by disparate treatment of and reactions to similar events, with no apparent basis in principle.
