Saturday, March 18, 2017
Middlebury prof Laurie Essig has published an essay in The Chronicle that attempts to complicate the portrayal of the Charles Murray debacle as a regrettable blow to free speech. This strikes me as the paragraph that does the heavy lifting of her analysis:
The Murray event’s organizers encouraged us to debate his ideas and to counter his eugenicist arguments with evidence and pointed questions. To be fair, many at Middlebury, including the president and the political-science faculty, were worried about censorship and committed to the idea that we must be able to hear ideas we find disagreeable. For people who feel threatened in the current political climate, however, polite debate about disagreeable ideas is a luxury they can no longer afford. We live in dangerous times, when immigrants fear expulsion and hate crimes are on the rise. Personal vulnerability drowns out the fear of censorship.
Under what circumstances should polite debate be deemed a luxury we can no longer afford? If Essig had written that relying solely on polite debate and eschewing other forms of action may be a luxury we cannot afford at certain times, I'd agree wholeheartedly. But unless we're in an emergency situation when polite debate is not a wise investment of time, I struggle to think of a context in which polite debate must be rejected as an unaffordable luxury. Contrary to Essig's assertion that "[t]he right became its own precious snowflake when [Milo] Yiannopoulos talked about teenaged boys as sexual subjects who could consent to sex with adult men," I don't think that CPAC's withdrawal of an invitation to Yiannopoulos shows that conservatives also believe that certain beliefs are inappropriate for polite debate. There are legitimate questions surrounding the wisdom of an organization's decision to provide a platform to a particular speaker, but that does not mean that it's categorically wrong to engage in a polite debate about having sex with boys. There was nothing wrong with members of the Middlebury community condemning the decision to invite Charles Murray to campus; the problem is what happened after the invitation was extended and accepted.
Essig is right to point out that we have to be attentive to ensuring that those impacted by the views being expressed are equipped to participate meaningfully in the debate. The proper response to such concerns is to remove barriers to participation and empower traditionally marginalized members of the community; the proper response is not to dismiss polite debate as an unaffordable luxury.
Thursday, March 16, 2017
Last week, the deans of 25 Catholic law schools delivered a letter to Mick Mulvaney, Director of the Office of Management and Budget, objecting to the elimination of the Legal Services Corporation. With today's news, we have decided to release that letter publicly.
March 10, 2017
Director, Office of Management and Budget
725 17th Street, NW Washington, DC 20503
Dear Mr. Mulvaney:
We write as deans of Catholic law schools in the United States to urge you to maintain funding for the Legal Services Corporation (LSC), the largest funder of civil legal aid in our nation.
The LSC’s 43-year history reflects a bipartisan commitment to address our nation’s glaring access to justice problem. LSC-funded providers have provided a voice to millions of low-income Americans who could not otherwise have afforded legal representation in the midst of some of life’s most harrowing circumstances. The most frequent cases involve family law (e.g., protecting victims of domestic violence, guardianship proceedings), housing (e.g., landlord-tenant disputes, renegotiating loans to prevent foreclosure), helping military families with a variety of legal needs, and consumer issues (e.g., protecting the elderly and vulnerable from being victimized by unscrupulous lenders). These providers help people who live in households with annual incomes at or below 125% of the federal poverty guidelines, a category that includes almost one in five Americans.
We recognize the need for difficult fiscal decisions, and the LSC has already worked creatively and diligently to do more with less. From 2007 to 2016, funding per eligible person decreased from $7.54 to $5.85. In 2016, Americans spent millions more on Halloween costumes for pets than on LSC grants.
Further cuts to the LSC would exacerbate a justice gap that remains deeply problematic for a nation committed to the rule of law. According to the World Justice Project’s survey data, the United States ranks dead last (36th out of 36) among high-income countries on the question of whether people can access and afford civil justice. Though LSC-funded programs helped 1.8 million people in 2015, recent studies indicate that 80 percent of the civil legal needs of the eligible population are not being met.
The justice gap should concern all Americans, but we take a special interest in the problem as leaders of our nation’s Catholic law schools. Though we represent law schools of various sizes, with unique histories, serving distinct communities in different regions of the country, we share a commitment to make the justice system more accessible to the poor. This is not just a matter of good citizenship or professional duty, but Catholic identity. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58) Our legal aid clinics, pro bono programs, and many other school-specific initiatives bear witness to this commitment. Closing the justice gap also relies on support from state and local governments, law firms, foundations, and a broad spectrum of private philanthropy.
The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s core commitments. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system for citizens who could otherwise not afford legal representation, the LSC empowers individuals and families to contribute to the common good by giving them more control over their own lives. The LSC promotes justice by leveling the playing field for all Americans.
A growing body of research demonstrates that investment in civil legal aid yields significant economic benefits for state and local governments. To cite just three of the conclusions supported by recent research:
- Civil legal aid reduces repeat incidences of domestic violence, thus reducing public spending on medical care, special education and counseling for affected children, and police resources.
- Through representation in child welfare proceedings, civil legal aid saves public money by helping children leave foster care more quickly.
- Housing court representation by civil legal aid attorneys saves public money by reducing evictions, unjust foreclosures, and homelessness.
It also bears noting that our support for the LSC does not emanate from our agreement about politics. Over its history, the LSC has been the subject of debates that have led Congress to restrict the permissible scope and aim of funded programs. Included among the activities that the LSC may not fund are lobbying, criminal cases, habeas corpus actions, labor organizing activities, abortion-related litigation, the representation of non-citizens (subject to limited exceptions), class actions, prisoner litigation, welfare reform, and redistricting. While we may not agree with each other on the prudence of these limitations, LSC’s remaining statutory charge lies largely beyond partisan reproach.
Each one of us could share stories of how LSC-funded organizations in our communities have changed lives for the better, not by government handout, but by equipping a trained advocate to come alongside those whose interests are too frequently disregarded and act as their voice, their counselor, and their champion. The LSC’s work provides a daily reminder of government’s capacity to affirm the dignity and worth of every American.
As the late Justice Antonin Scalia stated in his remarks celebrating the organization’s 40th anniversary, the LSC “pursues the most fundamental of American ideals,” for “without access to quality representation there is no justice.”
We appreciate your consideration of our request.
Mark C. Alexander
Villanova University Charles Widger School of Law
Daniel F. Attridge
The Catholic University of America Columbus School of Law
Kathleen M. Boozang
Seton Hall University Law School
Ave Maria School of Law
Annette E. Clark
Seattle University School of Law
Phyllis L. Crocker
University of Detroit Mercy School of Law
Fordham University School of Law
Stephen C. Ferruolo
University of San Diego School of Law
Pontifical Catholic University of Puerto Rico Law School
St. Thomas University School of Law (FL)
William P. Johnson
Saint Louis University School of Law
Michael J. Kaufman
Loyola University Chicago School of Law
Lisa A. Kloppenberg
Santa Clara University School of Law
Gonzaga University School of Law
Duquesne University School of Law
Creighton University School of Law
Rev. Lawrence W. Moore, S.J.
Loyola University New Orleans College of Law
Nell Jessup Newton
Notre Dame Law School
Vincent D. Rougeau
Boston College Law School
Stephen M. Sheppard
St. Mary’s University School of Law
Andrew L. Strauss
University of Dayton School of Law
University of San Francisco Law School
Georgetown University Law Center
Robert K. Vischer
University of St. Thomas School of Law (MN)
Loyola Law School, Los Angeles
Institutional affiliations are listed for identification purposes only.
Monday, March 13, 2017
1) I wholeheartedly agree that the global persecution of Christians is a crisis that demands our attention. The survey that I referred to in my post asked respondents to compare Muslims and Christians in terms of discrimination experienced in the United States.
2) I agree with Marc that it is possible "[a] person could perceive certain threats to religious liberty and not others, and still make contributions to the protection of religious liberty." In the case of evangelical Christians evaluating religious liberty threats in our country today, I do think that the failure to recognize Muslims as a legitimate object of religious liberty concern will, over time, weaken religious liberty for all. Christian support for so-called "anti-Sharia" legislation is one example. As Christians lead the charge to deny zoning permits for mosques in some communities, is there a danger of creating precedent (legal or political) for denying permits for churches -- especially churches espousing disfavored beliefs about foundational commitments of the emerging political order -- in other communities? Does the failure of (some) Christians to speak up against the demonization of American Muslims -- and the day-to-day implications of that demonization in the daily lives of American Muslims -- smooth the way for the demonization of conservative Christians?
3) I don't believe that we should remain silent about discrimination against Christians until we reach some sort of "real persecution" tipping point, but we should be specific and restrained in pointing it out (as I have tried to be). The persecution narrative among American Christians gives us ample resources to resist oppression if and when it comes; our too-easy embrace of that narrative, though, can limit its power when we need it most.
Sunday, March 12, 2017
I grew up listening to Christian rock -- Larry Norman, Randy Stonehill, the 77s, Jerusalem, etc. -- and one notable theme throughout the genre is that Christians are separate from the world. There are upsides to being formed in this worldview (an emphasis on holiness and courage) and big downsides (a lack of accountability for the common good and a tendency to see persecution around every corner). By the time DC Talk hit it big in the 1990s, I was not listening to much Christian rock, but the group apparently embraced the theme with gusto.
Julia Marley, writing for Commonweal, has a fascinating take on how DC Talk's smash hit "Jesus Freak" might have helped shape today's pro-Trump evangelical mindset:
“Jesus Freak” articulated the way the evangelical church thought of itself: marginal, scorned by mainstream culture, and, importantly, the victim of violence rather than its agent. The song’s speaker aligns himself with two characters. The first is a shirtless street preacher with “Jesus Saves” tattooed on his stomach, who we can assume disturbs the people he attempts to convert—we’ve all passed such a street preacher, careful to avoid eye contact. The second character is John the Baptist, who is also scorned. “The words that he spoke made the people assume / There wasn’t too much left in the upper room,” the song continues. But John had more to deal with than an audience rolling its eyes: Herod has him executed. Here lies the crucial sleight-of-hand of the song: we move seamlessly from a man who presumably retains the freedoms of speech and religion (even if his audience ridicules him), to a man assassinated by the state for expressing his religious beliefs. The song conflates criticism of Christianity with the persecution of Christianity. It elevates the eccentric to the status of martyr.
When I was probably 8 years old, I remember a playmate -- a Catholic no less! -- calling me "a church weirdo" because my family attended services three times each week (twice on Sundays, once on Wednesdays). It was a cruel and careless comment, but in my mind, it fed directly into the other messages I was hearing about the Christian life being one marked by persecution of the martyrdom sort. It contributed to a sense of being separate, shunned, and targeted. That's a lot to place on a single comment from an 8 year-old, but that's how narratives are reinforced from one generation to the next.
I think Julia Marley ends up overstating her case when she argues that "[c]onservative Christians see religious pluralism—and the state’s reflection of that pluralism—as encroaching on their right to practice their own faith." In many cases, conservative Christians are not objecting to the fact of religious pluralism -- they're objecting to the imposition of a secular orthodoxy that does make the practice of their faith more difficult, at least when the implications of their faith extend to the public square.
Still, Marley makes an important point to the extent that the evangelical subculture has proved to be fertile ground for political messages that elevate the persecuted status of American Christians beyond what any reasonable interpretation of the facts warrant and that -- even more dangerously -- pushes concern about discrimination against non-Christians to the margins. This was borne out in the results of a recent survey:
Overall, people were twice as likely to say Muslims face discrimination as they were to say the same thing about Christians. Democrats were four times more likely to see Muslim vs. Christian discrimination, and non-religious people more than three. White Catholics and white mainline Protestants were both in line with the American average: Each group was roughly twice as likely to say Muslims face discrimination compared to how they see the Christian experience.
The people who stuck out, whose perceptions were radically different from others in the survey, were white evangelical Protestants. Among this group, 57 percent said there’s a lot of discrimination against Christians in the U.S. today. Only 44 percent said the same thing about Muslims. They were the only religious group more likely to believe Christians face discrimination compared to Muslims.
Why should we care? Because religious liberty is only as strong as the degree to which it protects the most vulnerable among us. If millions of Americans who (should) care deeply about religious liberty fundamentally misperceive where the most potent threats are aimed, religious liberty for all is on shaky ground. This is an argument that some conservative Christians are championing -- Robby George and Russell Moore are two leading examples -- but it faces an uphill climb, in part because Christians have been hearing about our own persecution for a very long time.
Christian leaders and scholars need to cultivate a new commitment to discernment: distinguishing between the discomfort of holding increasingly unpopular beliefs and the real persecution that -- thus far, at least -- been far more prevalent in our lyrics than in our legal system.
Saturday, March 11, 2017
In the current issue of The Hedgehog Review, Chad Wellmon has an essay titled "Whatever Happened to General Education?" that is worth your time. He uses his experience chairing a University of Virginia curricular reform committee as a lens through which to view the history of general education in America, tracing back to the late nineteenth century. He wants to answer this basic question:
Since at least 2000, faculty at several universities—including Harvard, Stanford, and William and Mary—have attempted to reform their curricula. They have issued reports lamenting the lack of a coherent, common experience and the absence of a shared intellectual project. Yet many of these reports have had a negligible impact, whether because of delayed votes, infinitely reconstituted committees, or faculty exhaustion. Why?
I'll let you judge the persuasiveness of his answer(s), but this paragraph jumped out at me as particularly depressing, in which he discusses the work of Thorstein Veblen, a sociologist who dismissed American universities as "little more than 'competitive businesses'" as far back as 1918:
It remains to be seen what will become of UVA’s proposed curriculum. Veblen had little confidence that universities could reform themselves, not because he considered faculty members institutionally inept or the “captains of erudition” brilliantly conniving. He doubted the possibility of change because he doubted that American culture could change. “The popular sentiment,” he wrote, fully embraced the notion that “businesslike administration [was] the only sane rule to be followed in any human enterprise.” The broader culture didn’t have the ethical resources to imagine goods and ends that were not simply economic. And, so, absent other moral imaginations, the practices and virtues that had come to organize and sustain universities were those of businesses whose only good was economic utility.
In the constant struggle to maintain the institutional integrity of Catholic colleges and universities, we often hear the diminishment of meaningful Catholic identity framed in terms of a failure of leadership or lack of will on the part of the faculty. Those might be immediate causes, but they should not distract from the deeper question: To what extent can any institution that depends on the surrounding culture chart an entirely different course than the surrounding culture? If American culture lacked the requisite non-economic moral imagination a century ago, are we any more confident in our prospects today? Even working in a meaningfully Catholic law school, many of our mission-driven decisions will, at some point, require translation into utilitarian terms in order to ensure that they gain traction with a broad set of stakeholders. Especially when a university reaches a certain size of operation and scale of aspiration, can the hoped-for impact of our work truly run counter to culture? Or are we better understood as being shaped and carried by culture, all the while looking for opportunities to nudge culture in ways that are shaped by our founding missions (the interpretation of which is, almost invariably, shaped by the broader culture)? If so, does the Catholic higher education project remain worthwhile, or is it time to reject the accrediting agencies and retreat to the catacombs to begin teaching by the candlelight of a more deliberately and rigidly defined subculture? (My quick answer to cut the suspense: yes, the project remains worthwhile, though that answer may not hold for all time and every place.)
This is not a new conversation for MoJ, but it may bear revisiting at this cultural moment. In full disclosure, my reaction to the Wellmon essay was undoubtedly influenced by the fact that I read it soon after reading several reviews of Rod Dreher's The Benedict Option - a book I have not yet read but will. More to come.
Friday, March 10, 2017
Brad Wendel has posted a critique of Sally Yates' justification for her decision not to enforce the Trump administration's travel ban. An excerpt:
Whether the order is lawful will be determined by the courts. What interests me, as a scholar of legal ethics and jurisprudence, is whether Yates got it right when she said the responsibility of a lawyer for the government is to seek justice and stand for what is right, and that the position of the Department of Justice should be informed by the lawyer’s best view of the law. Yates’s claim that legal advisor should be informed by the best view of the law sounds very much like the position of Ronald Dworkin, who argued that a judge should determine the legal rights and duties of the litigants by constructing the best possible interpretation of the principles of justice, fairness, and procedural due process, considered from the standpoint of the community’s political morality. The interpretation must fit with past legal decisions, but the judge’s aim is also to show the community’s legal practices in their best moral light. I do not know whether Yates was thinking about Dworkin when she wrote her letter, but I wish to use this essay to seek to persuade legal advisors – whether to the government or a private client – that their role is not to construct an interpretation of the law that represents the best constructive interpretation of political morality.
Wendel's scholarship is always worth reading, and this essay is no exception. In previous work, I've pushed back a bit on his recurrent thesis that a lawyer's duty of loyalty to the client is vindicated through the lawyer's duty of loyalty to the law, period. My core concern with Wendel's approach is that our focus on the client as a citizen may obscure a view of the client as a person, though the dynamics are a little different in the context of a government lawyer, and I share his misgivings about Yates' explanation. If you're interested, you can read a fuller explanation of my reservations with Wendel's approach here.
Sunday, March 5, 2017
I've been thinking about the challenges presented by Americans' diminishing trust in institutions - a trend that has been accelerated by our President's troubling brand of conspiracy-fueled populist narcissism. As The Economist observed in December, Trump succeeded as a candidate by "systematically undermining trust in any figure or institution that seemed to stand in his way," and as President, his best chance for political survival is to keep fomenting cynicism on a "destructive mission to make America less like Sweden and more like Sicily."
But the decline of trust goes much deeper than Trump's rise. Bill Bishop makes this point in today's Washington Post, arguing that there isn't much that can be done to reverse course:
Everything about modern life works against community and trust. Globalization and urbanization put people in touch with the different and the novel. Our economy rewards initiative over conformity, so that the weight of convention and tradition doesn’t squelch the latest gizmo from coming to the attention of the next Bill Gates. Whereas parents in the 1920s said it was most important for their children to be obedient, that quality has declined in importance, replaced by a desire for independence and autonomy. Widespread education gives people the tools to make up their own minds. And technology offers everyone the chance to be one’s own reporter, broadcaster and commentator.
We have become, in Polish sociologist Zygmunt Bauman’s description, “artists of our own lives,” ignoring authorities and booting traditions while turning power over to the self. The shift in outlook has been all-encompassing. It has changed the purpose of marriage (once a practical arrangement, now a means of personal fulfillment). It has altered the relationship between citizens and the state (an all-volunteer fighting force replacing the military draft). It has transformed the understanding of art (craftsmanship and assessment are out; free-range creativity and self-promotion are in). It has even inverted the orders of humanity and divinity (instead of obeying a god, now we choose one).
Like my MoJ colleagues and other advocates of Catholic social teaching, my reflex is to jump in and supplement Bishop's gloomy analysis with a reference to civil society. My own work in the area has been premised, at least in part, on civil society's importance as a wellspring of the type of trust on which our political community depends. But what if we're wrong?
Calvin College prof Kevn den Dulk offers a provocative essay in the current issue of Comment in which he argues that we cannot assume "that political trust will flow inevitably out of the ordinary work of churches and soccer leagues." He explains:
[T]he empirical evidence that social trust breeds trust in government is largely non-existent. Some studies even suggest the influence might flow more clearly in the other direction: Political trust—confidence in the reliability, openness, responsiveness, and fairness of government— often acts as a precondition for social trust, not the other way around.
The revival of political trust is a separate challenge from the revival of civil society, in his account. So what does Catholic social teaching have to offer as a path forward for restoring trust among citizens as citizens? What do we as Catholic legal theorists have to offer?
Saturday, March 4, 2017
Notre Dame has decided to invite Vice President Pence to speak at the university’s commencement ceremony and receive an honorary degree. I agree with Rick that extending this honor is appropriate for a Catholic university.
Honoring President Trump would present a much thornier dilemma. I don’t believe that Trump’s stated policy positions necessarily preclude an honor even though some positions conflict directly with Church teaching. The concern surrounding the bestowal of these widely publicized honors is that they create muddled institutional messages. The potential harm stems from confusion caused by the honor. As the Catechism puts it, the sin of scandal refers to “an attitude or behavior which leads another to do evil,” and typically “operates by giving a bad example.”
If muddled messages are the concern, then the analysis has to be contextual, as I argued in an essay I wrote after Notre Dame’s decision to honor President Obama. Checking a box on a particular issue does not, standing alone, determine the appropriateness of the honor. The university must weigh whether the honor “would amount to a surrendering of [its] public witness.” It may not be enough to point to the honoree’s views on a single issue. Even when an honoree rejects Church teaching on an essential matter such as abortion, “there are many instances where the honor is unlikely to amount to ‘scandal’ because the honoree is overwhelmingly associated with work through which the Gospel is proclaimed.” Context matters.
Context makes it more difficult for a Catholic university to honor President Trump without creating muddled institutional messages, but not because he espouses more positions that are contrary to Church teaching than past Presidents have. (Reasonable Catholics can argue about that.) Rather, the more dangerous confusion arises from the fact that his words and actions reflect an absence – indeed, a deliberate rejection – of the virtues that Catholic universities seek to impart to their students. While we all fall short, we have not witnessed a President in recent memory who so enthusiastically celebrates what Catholics (and previous generations of Americans) would have viewed as personal shortcomings; President Trump appears not to see them as shortcomings at all.
Consider the cardinal virtues: prudence, justice, fortitude, and temperance. Or recall the fruits of the Spirit: charity, joy, peace, patience, kindness, goodness, generosity, gentleness, faithfulness, modesty, self-control, and chastity. Now consider the qualities that our President seeks to cultivate in himself and others. Even in his visit to a Catholic elementary school yesterday, President Trump encouraged one young student to get rich and two others to become famous (by getting their photos taken with the President). Minor episodes, to be sure, but part of a consistent pattern over the decades. Even the President’s supporters defended a widely perceived lack of “character” on the part of their chosen candidate by insisting that the country needs a strong leader, “not a Sunday school teacher.” Very few defend our President as virtuous, of strong character, or exhibiting “the fruits of the Spirit.” For some supporters, it is this absence of virtue that makes him appealing – the ability to do what needs to be done without worrying about social niceties. His rejection of traditional virtues is not an afterthought -- it was core to his candidacy, and it is an inescapable dimension of his public reputation as President.
Is this something that a Catholic university can overlook? I recommend, to cite but one of many illuminating examples, Catholic University President John Garvey’s remarks on the dangers of separating the cultivation of intellect from the cultivation of moral virtue in the mission of Catholic higher education. If Catholic universities are called to guard their public witness by avoiding muddled institutional messages, an honoree’s publicly known indications of character are as relevant as the honoree’s publicly known policy positions. As such, Catholic universities should think twice before honoring President Trump.
Wednesday, March 1, 2017
As you may know, current drafts of the Trump administration's budget proposal call for the elimination of the Legal Services Corporation, the primary funding agency for civil legal aid in this country. Here's an excerpt from an op-ed I published in yesterday's Minneapolis Star-Tribune making the case for why President Trump should be a champion of civil legal aid:
The working poor who voted for Donald Trump weren’t looking for a handout — they were looking for a voice. Legal aid attorneys have been a voice for the voiceless for decades, enabling those on society’s margins to stay in their homes, with their kids, and in their jobs. In upending the establishment, Trump voters asked for a champion. Working with Congress to maintain support for legal aid is one way for our new president to show that he was listening.
The future of the LSC should be of particular concern to those who take Catholic social teaching seriously. As Saint John Paul II explained, “Love for others, and in the first place love for the poor, in whom the Church sees Christ himself, is made concrete in the promotion of justice.” (Centesimus annus ¶ 58) Closing our nation's justice gap depends on support from state and local governments, law firms, law schools, foundations, and a broad spectrum of private philanthropy. The LSC’s support, however, is irreplaceable, not just as a matter of practical reality, but as an affirmation of our political community’s properly formed priorities. The Church teaches that the state is responsible to cultivate the conditions by which “the common good may be attained by the contribution of every citizen.” (Compendium of the Social Doctrine of the Church ¶168) By helping ensure access to our justice system, the LSC empowers individuals and families to contribute to the common good.
Now is the time to speak up on behalf of the LSC's vital contributions to our society.
Tuesday, February 28, 2017
I've written an essay for America magazine on the Washington Supreme Court's recent ruling rejecting a florist's claims that the Constitution shields her from being compelled by the state to provide flowers for a same-sex wedding ceremony. I continue to think that the legislature needs to do the heavy lifting if we're going to navigate the tensions between religious liberty and anti-discrimination norms, but the Washington Supreme Court's reasoning leaves plenty to be desired. For example, the Court approvingly quoted the customer's brief that “[t]his case is no more about access to flowers than civil rights cases in the 1960s were about access to sandwiches." Here's a responsive excerpt from my essay:
Well, the 1960s civil rights cases were not just about access to sandwiches. They were about access to sandwiches and housing and jobs and schools and parks and water fountains and voting booths and transportation and so much else. Jim Crow was a tightly woven web of laws and social norms aimed at the systemic oppression and subjugation of blacks; the harms were not going to be remedied by either legislators or judges wielding scalpels. The 1960s civil rights laws were sledgehammers, as they needed to be.
Fast-forward to 2013 and the debate over the nature of marriage. Once the news broke that Mr. Ingersoll and Mr. Sneed had been turned away by Ms. Stutzman, several florists offered to provide flowers for their wedding free of charge. If our legal system lacks the capacity to acknowledge a meaningful difference between Ms. Stutzman’s denial of flowers and the treatment of blacks under Jim Crow, the liberty of conscience is headed for a very rough ride.