Posted on 04/04/2015 6:04:31 AM PDT by SeekAndFind
Back when there was more wisdom in the practice of law, meaning back when the profession had more humility, there developed a sage doctrine: Courts should resist ordering “specific performance” when a personal service contract is breached. The idea is that when a provider, especially one of small scale, breaks an express or implied agreement to provide a service to a consumer, it is not sensible for a judge to direct that the agreement be carried out as written.
The doctrine leapt to mind during this week of manufactured controversy over the state of Indiana’s near-verbatim replication of the federal Religious Freedom Restoration Act (RFRA).
The “no specific performance” doctrine recognizes that, while our law is capable of many things, it cannot force people to get along. To try to do so, especially with people embroiled in a bitter disagreement, would more likely lead to additional strife, not calm resolution. What’s more, there are other, better ways to make a wronged party whole.
In most instances, for example, a court can order money damages. That leads us to another quaint bit of prudence: If there are no concrete damages, there is no legal case. Of course, the lack of a clear, measurable harm that can be compensated by money does not necessarily translate into the absence of a wrong. But not all wrongs are fit for judicial resolution. Some are too trivial; others implicate social relations that, in a free society, are best left to political processes or market forces.
Why does a family pizzeria’s business have to ignite a civil-rights firestorm? Why can’t it be treated just like any other run-of-the-mill breach of a caterer’s agreement to supply food? Indeed, in the Indiana dispute over the pizzeria’s theoretical objection to catering a same-sex wedding, we don’t even have an agreement except to the extent one is implied by the mere fact that the business is open to the public. And there are plainly no damages: Even if this pizzeria does not wish to cater a same-sex wedding (assuming it were ever asked to do so), there must be scores if not hundreds of pizzerias that would welcome not only the business but the favorable publicity for taking the gig.
If this were actually about pizza, a demand for specific performance would be frivolous. We have a controversy in Indiana, and now nationally, only because liberal fascists want a controversy. They want what a free society should never grant: License to use the law not as a protective shield but an offensive sword for extorting compliance with their own intolerant agenda — something that, as Tammy Bruce explains with moving eloquence, ought to be especially offensive to gay people who’ve felt the sting of condemnation over being different.
I’ve felt different these last several days too, at least in conservative circles. RFRA is evidently our new favorite law, but I’ve never liked it. And count me unimpressed by this week’s ubiquitous Republican talking-point: the fact that RFRA was signed with great fanfare by a liberal Democrat, Bill Clinton, after being crafted by that “lion of the left” Ted Kennedy and his then cub, Chuck Schumer. That’s supposed to be the showstopper: You’ve been told by the media that the Indiana law is a classic exhibition of bigotry by right-wing religious zealots, so naturally you’re dumbfounded to learn that it is, just about word-for-word, the same law enacted 22 years ago by progressive icons.
It should be no surprise, though. RFRA was an unfortunate reaction, by an odd combination of conservative religious leaders and opportunistic statists, to a 1990 Supreme Court decision, Employment Division v. Smith, written by Justice Antonin Scalia, a brilliant conservative jurist (and, for what it’s worth in this context, a devout Catholic). The statute’s enactment was triggered in 1993, when the Court reaffirmed Smith in Church of Lukumi Babalu Aye v. City of Hialeah. These cases stand for the principle that the First Amendment does not provide a religion-based exemption from compliance with a law of general application that is religion-neutral — i.e., a law that applies to everyone equally and does not discriminate against adherents of a particular religion.
Admittedly, I do not come at this issue as a pizza business with Christian scruples against the concept of gay marriage. Back in 1993, I was a terrorism prosecutor whose jihadist defendants wanted the First Amendment construed as immunity for their scripturally inspired incitements and attacks. Nonetheless, the proposition outlined by Justice Scalia is sound: If you hold that a person can flout the laws that apply to all of us because of his subjective religious beliefs, he becomes a law unto himself. That is an invitation to anarchy.
Moreover, RFRA does not provide a principled, knowable carapace of religious freedom. Rather, it transfers the power to decide what religious convictions will be respected from where it belongs, in the hands of free people through their elected representatives, to where it should not reside, in the whims of politically unaccountable judges whose sensibilities often differ widely from the community’s sensibilities.
When someone claims a law burdens religion, RFRA imposes a test: The government must prove that the law serves a compelling public purpose and represents the least burdensome manner of doing so. There is no reason to believe judges are better equipped to perform that balancing than legislatures; and there is nothing about a law degree that makes a judge a suitable arbiter of which tenets of your faith outweigh the government’s interests, and which do not. Furthermore, if a legislature strikes the wrong balance, its statute can be amended with comparative ease; reversing a court’s error in defining the parameters of a constitutional right is extraordinarily difficult.
Messrs. Clinton, Kennedy, Schumer, et al., knew what they were doing: Progressives like transferring decisions to the courts, which are more likely to share their predilections than the public. They also knew their movement. As long as the RFRA was being invoked on behalf of radicals in an effort to buck the law, it would be dandy. But the moment it was relied on by traditionalists to safeguard their Judeo-Christian values, the left’s shock troops would brand the traditionalists as “haters” and no one would care to remember that Democrats wrote the law.
Trumped up controversies like the one in Indiana are needlessly divisive. There would be many more Americans supportive of, or at least resigned to, the concept of gay marriage if it were just a matter of live-and-let-live tolerance. Instead, the Left’s agitators have made it the leading edge in a campaign to suppress traditional religious belief. They demand not toleration but compulsory approbation — with dissenters stigmatized and subjected to the prohibitive expense of legal fees.
We should not allow the law to be used this way. The law is supposed to be a reflection of our social consensus, not a cudgel to impose an unpopular outcome that breeds resentment.
There is fast-growing public support for the proposition that gay marriage should be permitted, but nothing close to a consensus that it must be endorsed and facilitated by people who have reservations based on millennia of teaching that, up until about five minutes ago, was society’s nigh-unanimous consensus. And the vast majority of those people who still hold the view recently held by a vast majority honor the human dignity of gay people; they are perfectly willing to serve them as customers, just as they serve everyone else. Their objection is to the forced participation in a marriage ceremony, because they — again, based on those millennia of teaching — understand marriage as a solemn religious institution whose underpinnings gay marriage contradicts.
There is more than enough social space in America, and way more than enough pizza, to let both sides of this issue have their way. What happened to celebrating diversity? We used to understand that our law isn’t capable of making people coexist cooperatively — only peacefully.
— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.
Because too many government officials are now hostile to how God defines marriage, government is being used to force me to recognize and even enable “marriage” that God tells me is morally repulsive. Just as we have a separation of church and state, we must now have a separation of marriage and state. When marriage is a private matter, then anyone can enter into any manner of relationship they please, but they cannot use government to impose their definition on others.
This is not the ravings of a right wing-nut. From none other than the Newspaper of Record, the NYT, November 26, 2007:
“The American colonies officially required marriages to be registered, but until the mid-19th century, state supreme courts routinely ruled that public cohabitation was sufficient evidence of a valid marriage. By the later part of that century, however, the United States began to nullify common-law marriages and exert more control over who was allowed to marry.
By the 1920s, 38 states prohibited whites from marrying blacks, “mulattos,” Japanese, Chinese, Indians, “Mongolians,” “Malays” or Filipinos. Twelve states would not issue a marriage license if one partner was a drunk, an addict or a “mental defect.” Eighteen states set barriers to remarriage after divorce. “
from:
http://www.nytimes.com/2007/11...
It all started in the Progressive Era when eugenics became fashionable and they wanted to influence who was allowed to conceive children and who wasn’t. So the history on this thread goes way back and is in fact existential for Progressives.
"Back when there was more wisdom in the practice of .... "
and it is my opinion that THAT is the crux of all modern human dilemna's
Way back in Genesis, we got the divine direction for a most common event ... marriage.
God says a man and a woman
But that was "Back when there was more wisdom in the practice of ... "
Because now that we have thoroughly confused and clouded a simple directive, there is no untangling it
In a sense, this is good, because it is only a matter of time (and I personally believe that time is not far off), that God will allow the destruction of this old earth and build a new one ... which all we Christians would just LOVE to see happen
But the fact remains ....
if
Back when there was more wisdom in the practice of ....
We had continued in said wisdom, we'd be living in a wonderful world
Even so, come quickly
The Progressive era might have put forth several antimiscegenation laws. But, there was already a large number of such laws across the US.
” If you hold that a person can flout the laws that apply to all of us because of his subjective religious beliefs, he becomes a law unto himself. That is an invitation to anarchy....”
Government started down this path when they decided to redefine the inalienable right of private property and free association in an attempt to outlaw racial discrimination by business owners. This is where the idea that a business that is open to the public waives these rights and must serve any customer as a matter of “public convenience”
For the sake of making it possible for racial minorities enjoy the use of a business bathroom, drinking fountain and lunch counter, government set in motion laws, regulations and legal precedent that now has become a means for the left (er, “progressives”) to wage cultural lawfare against people who disagree with their agenda.
Nobody wants to talk about rethinking the legal foundation for this mess because we all know that the left will crank up the hyperbole machine and claim that conservatives want a return to segregated facilities and “NO COLORED ALLOWED” signs.
But facts and principles are stubborn things. The fact remains that when two men can demand that a business owner serve them just because they are sodomites who want to celebrate a “marriage” that is morally repugnant, the left has come out of the closet as the Fascists they really are: that government will tell us what is moral and what is not and anyone who does not positively affirm the left’s moral view will be ground into the dust using all available means.
And thus we get to see how slavery returns to the Land of the Free.
That’s true, but there were no nanny state laws about meat inspection or child labor. Oh, for the good old days.
No law or rule that deals with discrimination beyond banning it in government employment is Constitutional. Had the legal changes in the segregation disputes been limited to discrimination in law and discrimination by government entities, segregation would have died naturally and without the deep and deteriorating wounds inflicted by the clamping down on liberty and private property that did ensue. Racial discrimination is simply unprofitable and had to be forced by law to be effective.
“human dignity of gay people;”
I’m not sure there is such a thing, but i suppose if there were then like all dignity it would be the imaginary creation of the owner NOT other people.
Dignity is defined as: “the state or quality of being worthy of honor or respect”
That is an evaluation of value and merit that is inherently subjective and thus the basic right to every living being to decide for themselves.
I for one am not afraid of saying that a choice of life style that is both sterile and self-destructive deserves very little honor or respect. People who love the followers of this life style should discourage its continuing for the sake of those they love.
>>Nobody wants to talk about rethinking the legal foundation for this mess because we all know that the left will crank up the hyperbole machine and claim that conservatives want a return to segregated facilities and “NO COLORED ALLOWED” signs.
I’d be delighted to talk about rethinking this. I think a business ought to have the right to refuse service to anyone for any reason (with a very few exceptions, when refusal of service would be life-endangering).
If a business doesn’t want to serve people from a particular group, those people should open their own business to fill the vacuum and reap the rewards.
I think that allowing businesses to discriminate would give us a lot more “diversity” and isn’t that what the left is always clamoring about? I could imagine a big demand for adults-only restaurants or movie theaters. IIRC, there are female-only gyms. There are gay bars, so why not straight bars?
It is inexcusable to demand any man to service any other man. Thus it is equally inexcusable to demand a businessman not have the right to refuse to do business with anyone for any reason.
This form of right essence to the ability to do business after all if you cannot discriminate with whom you do business you will most assuredly go out of business.
But that of course is not the issue in the case here. The sodomites are not demanding that people do business with them they are demanding that they provide special kinds of services that are distinct. In essences they want a new kind of Cake not offered or religiously recognized.
They want a new kind of photo taking service not agreeable by the service provider.
This isn’t simply a matter of being free to choose your clientele its a matter of being free to choose what sort of services you offer. Its like suing an ice cream store for not providing a trucking service, or making a non-ice cream cake.
All because some liberals and their employees in black robes can’t tell the difference between a wedding and a hedonistic celebration of sodomy.
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