19 June 2021

Unconsidered Cases

Because they deserve consideration.

  • History is not always written by the winners; sometimes it's written by the entrenched and entitled, regardless of whether they "won" or "lost." The recent recognition of problematic Confederate monuments and other memorials is just one example, one that points to a more disturbing issue: History isn't always what we think it is, whether from a "just the facts" to a "valid interpretive paradigms" perspective and an infinity of variants and shades and combinations. For example, one explanation for the backlash against the 1619 project (which, for whatever its faults, does not claim to be definitive or complete) is that its greatest sin is that it implicitly questions whether meritocrats descended from slaveowners just might be less worthy than they think they are, thanks to unequal original positions — and that even many of the institutions providing credentials to the meritocrats have the same (and often worse) problems.
  • Poor Tom's a-warmin', my lord, while dining on steak and lobster. Remember, though, that the Fool was by far the "smartest" and "wisest" character in that play (pretty low bar, though; on the other hand, "has a better sense of priorities and/or internal consistency than current world leaders" is a pretty low bar, too).
  • I'm always appalled at the nonsense of arguing over English-language gender-neutral pronouns. The argument betrays immense ignorance of other languages; consider not just obvious linguistic drift, but the ordinarily reduced (or eliminated) gender specifity of formal address, and homonymic variants like the German "sie" (which becomes "Sie" and draws in the formal address… when written, anyway).
  • Connoisseurs of classical music have been bemoaning audience size (both at performances and otherwise) for a couple of centuries. It has only become worse of late. What this frequently neglects, though, is the differences between merits as a performer and as a musician. (It also glosses over the mercantilism-versus-comparative-advantage problem, but that's much too subtle when focusing just on the concert hall.)
  • Speaking of neglect of critical distinctions and glossing over differences in paradigms, consider Thursday's decision in Fulton (PDF) , in which all nine justices make an egregious definitional error that is unfortunately embedded in both jurisprudence and the entire conversation. There's a fundamental question in Fulton that was assumed away (and that I do not think Justice Ginsburg would have allowed to be assumed away): Is nonindividualized refusal to consider the overall fitness as parents of a group of individuals whose commonality resides in doctrinal disdain for one aspect of their lives "free exercise of religion"… or naked tribalism? If an ardently Catholic gay/lesbian partnership that complied exquisitely with every other doctrinal aspect, but fails this one, does that entitle CSS to treat that partnership as Other and reject their candidacy as foster or adoptive parents?

    About four centuries ago, Europe was busy demonstrating that it's much closer to tribalism than actual religious exercise, however clothed in or rationalized via purportedly religious doctrine. And that's before disentangling matters from "establishment of religion," which also got short shrift. In short, even a 70-odd-page concurring decision didn't engage with the limits of "exercise" — any more than did the real issue in Smith, which was a predicate to reaching the "neutral law of general applicability question." There was a failure to inquire into a factual predicate — not just that peyote appeared on a schedule, but that it properly did so without itself reflecting religious bias in the scheduling process (the distinctly disparate treatment of tobacco comes to mind…).

    As to Fulton itself: I deny that treatment of a discrete group of individuals as Other to be shunned on the basis of religious doctrine constitutes exercise of religion in the first place. The bitter contrast that this relates to providing parents for parentless children in a world in which there is no other qualification to be a parent has also remained unconsidered.