06 October 2020

Isn't That Special

It has taken me a full day to tone this down to socially acceptable rage. For those few reading this, your screens will thank me; they would have been scorched by my initial reaction.

Justice Thomas's irrelevant and uncalled-for screed against Obergefell demonstrates precisely why the law must intervene; the following assertion is in practice a rationale for overt, unlawful discrimination under cover of faith, doctrine, and orthodoxy.

Since Obergefell, parties have continually attempted to label people of good will as bigots merely for refusing to alter their religious beliefs in the wake of prevailing orthodoxy.

Davis v. Ermold, No. [20]19–926 dissent from denial of cert., slip at 3 (Thomas, J.) (PDF).

The last remaining acceptable bigotry in this nation is "faith" against agnostics and atheists. Justice Thomas et al. are unable (or perhaps just unwilling) to see that bigotry as bigotry, hiding behind the assumption that all — even a majority — even just some — of those who justify their discrimination on the ground of faith are acting in "good will"… subjectively and objectively.

  • Just try getting your dog tags marked "none" instead of "no preference" at the height of the Cold War… or when being deployed to the Arabian Gulf a year after the fall of the Berlin Wall. Listen to the earnestness of the personnel-system folk as they explain that it's as much for your family and the other members of your unit as it is for your remains. (Now imagine the humiliation of going to your CO for help with it when you have no idea what his, or occasionally her, reaction is going to be.)
  • Just try becoming seriously ill outside of a major metropolitan area on a Sunday. Or getting an unusual prescription filled. Or even getting a new alternator shipped in 80 miles from your duty station so you can be back on duty at zero-dark-thirty on Monday.
  • Just try getting married to ensure that your disabled child will have a continuing parent after the cancer finishes its ravages, only to be turned away by a clerk "of good will" at the counter… who has no problem issuing a marriage license to an opposite-sex couple in which there's a history of abuse, so long as one of them is overtly xtian.

These are not hypotheticals. I have personally observed and/or participated in every one of them. And in each instance, Justice Thomas et al. refuse to recognize the tail end of that sentence that Justice Thomas penned, and its Procrustean ancestry. Perhaps Justice Thomas should consider the justifications offered in the early nineteenth century concerning the inferiority of the Negro race to devout white Christians, and its relationship to slavery. (Or, much more recently, to the religious rationales offered for apartheid in Rhodesia and South Africa, both with established churches in the technical sense.) Perhaps Justice Thomas should consider the problems presented in a case argued today with the "good will" of devout Muslims refusing to alter their religious beliefs — this time in the privacy and internal meaning of religious support — in the wake of the prevailing xtian orthodoxy that Islam is "against" the US, and must be treated with more suspicion than, say, sexual abuse of individual children by members of the clergy. <SARCASM> The natural response is that none of those abusers were acting in "good will." How much difference did that make to the victims? </SARCASM>

The biggest problem with religious-rights-and-tolerance jurisprudence is its failure to acknowledge that "establishment" and "free exercise" are inextricably intertwined. It's very much like the argument over whether Cal. Code Civ. Proc. § 425.16 provides a "purely procedural" right that potentially conflicts with the Federal Rules of Civil Procedure and therefore is not to be recognized in federal courts (and certainly not federal courts outside the state), or a substantive right that must be acknowledged. (And that's before delving into the "outcome-determinative" problem, which also applies more egregiously to rules of evidence!) Human behavior seldom divides neatly, and inarguably, into neat categories that have no overlap with anything else. Justice Thomas's ill-considered (and, one might add, entirely irrelevant to the dispute in which he raised it unless one accepts the fact of a conflict) rant actually proves the point. Religion cannot be so easily separated, and for that reason alone it must bow to secular considerations… unless, that is, you can ensure that everyone shares that same faith. The empty chair on the bench this morning would have been filled by someone who didn't.

What makes this worse is that Justice Thomas improperly presumes that Davis's faith was being attacked, and that the law demanded that she change her beliefs. The law did not demand that Davis cheerfully participate in the marriage ceremonies, and celebrate the prospective union as a joyful expression of supernatural mandate. The law controlled only her actions, not her beliefs. This is a distinction I would expect a student in first-year torts or criminal law to understand. And the less said about the Leon exception and how it relates to "good will," "good faith," and racial/religious discrimination, the better.