-- R.G. Menzies
LIBERTARIAN/CONSERVATIVE DIGEST AND COMMENTARY FROM AN ACADEMIC PSYCHOLOGIST in Brisbane, Australia. My academic publications are widely read
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What Jordan Peterson Doesn't Understand About Religion and Free Speech
Only a principle of COMPLETE freedom of expression will ensure that YOUR freedom is not taken away.
There is also an interesting point about meaning below which aroused my philosophical instincts. The nature of meaning is a major debate in analytical philosophy.
With regard to the wedding cake controversy, apparently some Leftists say a cake can have no meaning: "It's just a cake". Justice Kagan in her SCOTUS ruling concurred, saying the the Christian cake-baker "invests its sale to particular customers with ‘religious significance.’ So the meaning of the cake is entirely in the baker's mind, not in the cake, so therefore doesn't exist.
But that is a non-sequitur. Meaning can only exist in someone's mind. An inscription in Chinese will have meaning to Chinese people but will be meaningless to me because I don't speak Chinese. And different meanings may exist in different minds for the same word: What is covered by "freedom", for instance, is often disputed.
What was at issue in the case was not some non-existent absolute meaning but the baker's feelings and responses. Baking the cake for him meant disloyalty to the scriptures. And the First Amendment tells us that he is at liberty to bake or not because of such religious beliefs.
It seems a pity that a Supreme Court justice was too thick to see that what was at issue was a man's beliefs, not some mythical absolute property of a cake. Kagan was, however, an Obama appointee
Recently, Jordan Peterson was interviewed by Australian comedian Jim Jeffries's show on Comedy Central. The interview did not go particularly well for Peterson, who, among other things, has had a meteoric rise as public intellectual for deftly handling tense interviews regarding his opposition to the cultural left's assault on free speech. There's been some oddly triumphant coverage of what happened. Vice summed up the interview this way, "Watch Comedian Jim Jefferies Finally Shut Up Jordan Peterson."
Here's what happened. Peterson was asked about the issue underlying a recent Supreme Court case: Should bakers be forced to bake wedding cakes for gay weddings if they have religious objections? Peterson says, "I don't think that would be a very good idea." Jeffries then asked if a baker should be able to deny a wedding cake for black people. Peterson says they should probably be allowed to deny service to black customers, "but that doesn't mean it's right." Jeffries then says that the civil rights movement did result in passing laws that required people to serve black people and that made society better and asks Peterson why this is different than now. Peterson says, "Maybe it's not different. ... Maybe I was wrong about that." Obviously, I'm paraphrasing a bit, but you can watch the whole exchange here:
This exchange is useful because it gets at a fundamental problem with religious liberty debates. Peterson's first impulse in favor of free expression in the broadest sense was right, but he got caught flat-footed when presented with a very common and overly simplistic reading of the distinction between where public accommodation laws end and free speech begins. It's a debate that demands some real understanding, as the future of the First Amendment depends on it.
As someone who's covered religious liberty issues for more than a decade, here's the answer I would have given: Business owners should be able to turn down any customer for any reason, period. That's freedom, and I think we're far enough removed from Jim Crow that there would not be widespread discrimination if it were the law of the land tomorrow. Further, businesses who did discriminate would likely be punished in the marketplace. When a bakery in the Portland suburb didn't make a cake for lesbian commitment ceremony, they were run out of business in months. I don't like that this happened to them, but in an area as liberal as Portland, it was very predictable.
However, a funny thing happened. A year and a half after the business was shuttered, the Oregon labor secretary Brad Avakian slapped the bakery owners with a $135,000 fine. When Avakian ran for secretary of state in 2016 the state's major papers didn't endorse him on the grounds that Avakian was too "political," and while bakery wasn't often explicitly discussed the egregious fine was tacitly understood to be part of his problems. The result was Avakian became the first Democrat to lose a statewide election 14 years. Liberal Oregonians thought being punished by the marketplace was both appropriate and enough.
However, since horrifying official racism is still in living memory, commercial freedom is a difficult thing to argue for. So where does that leave us? Note that in the recent Supreme Court decision Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Justice Kennedy's decision very clearly articulated the difference between public accommodation laws and argument for protecting the expression of creative professionals such as bakers (without coming down one way or the other). Still, even defining the difference was a huge victory.
Public accommodation laws to combat Jim Crow were always understood to apply to services that were essentially uniform and interchangeable. A black man wanting a sandwich at a lunch counter, a hotel room, or a train seat wasn't getting service that was any different than the white guy next to him. Beyond that, it legal distinctions about providing more subjective and individualistic services were hazy and deliberately so. Policing the link here involves assuming or determining intent—and it's very easy perceive racist intent where none exists—and this creates a host of problems when it's not an outright a violation of rights. Then there's the intersection of speech and business. Selling racist pamphlets is an overtly discriminatory commercial activity by nature and a lot more harmful than not baking a cake, and yet perfectly legal commercial activity because not tolerating it to some significant degree is not only at odds with the First Amendment but invites the government to make highly subjective judgments about what speech is and is not tolerable.
When the New Mexico wedding photographer case (Elane Photography v. Willock) appeared in 2006, the initial reaction was pretty interesting. I remember going on relevant message boards for wedding photographers and there was a lot of "I'm a liberal who supports gays, but I'm concerned." Wedding photographers retain the copyright to their work, were legally viewed as artists, and very much saw themselves as creatives. It was instinctively understood that the government telling artists what art they had to create was a very bad precedent.
In the related cases that have popped up since, the clearer the occupation is relative to either artistic or lexical expression, the better the odds it will be protected. I think the only one of these cases that has won thus far in a lower court is that of Hands On Originals, a T-shirt printer in Kentucky who declined to print T-shirts for a gay pride event. A significant reason the printer won his case is that the public accommodation argument is belied by the fact he owns a literal printing press that prints words and messages, even if his medium is T-shirts and promotional tchotchkes rather than, say, newspapers.
From there, it's harder to make an argument whether or not bakers or florists count as expressive artists, though it should be obvious enough that a) when it comes to protecting free speech from government interference the prudent thing is to define these matters as broadly as possible b) accepting them on their own terms as artistry should be easy enough since this all centers on custom designs and there are big artistic competitions in both professions. (Bakers are also often asked to put words on cakes in addition to both professions being asked do create things that are overtly symbolic.) Obviously, if I pick up a sheet cake that's pre-made at the grocery store, public accommodation arguments would seem to be applicable. It's also why Jack Philips, the owner of Masterpiece Cakeshop, would sell his offended gay customers anything already in his store, but not make them a cake from scratch. His own effort was not intertwined with the wishes of the customer in selling pre-made goods the way it would be in a custom order meant to honor a specific ceremony of religious significance to him. (Notably Phillips doesn't do other things that violate his beliefs, such as make Halloween-themed baked goods.)
Now the media coverage of these issues has not been conducive to dealing with the nuances outlined above. Which has contributed to a situation where, even when liberals start to understand the speech implications, they stumble over their own hypocrisy on public accommodation measures. Having spoken on these issues publicly a number of times I've seen this happen a lot, and prominent defenders of religious freedom tell me it happens to them as well. The conversation you have tends to go something like this:
"What's the big deal? They just want a cake."
"Well, it's not 'just a cake.' What if the customer wants a 48-inch, five-layer cake that when you cut it open has been dyed to look like a rainbow pride flag and has an image of the two grooms respective faces on two fondant sculptures of Michalengelo's David on top and in frosting underneath it says 'Jesus Approves of the Union of Chuck and Buck's Open Marriage' and will take this baker baker three days of his life to make, if it didn't grossly violate his religious beliefs to make it in the first place?"
"That doesn't mean anything. It's just flour and sugar. Why won't this bigot sell him a cake?"
"If I forced you to bake me a cake that said 'Make America Great Again' you'd object, right?"
"Of course I would. Trump is practically Hitler."
"Ok, don't you see how the same principle of compelled speech applies to the first cake?"
"That's totally different. Those gay dudes just want a normal cake."
So long as the cake represents things the person believes in, there's nothing unique about it in their mind and for some reason they cannot be made to see it's in any way symbolic or representative of a viewpoint not everyone agrees with. And when you realize people are incapable of making this distinction, to the point of total moral disassociation that allows for compelling speech from others that they would object to explicitly being done to them personally, you realize there's a viral strain of argument that could be used to justify subjecting people they disagree with to any number of abuses. It also seems the most powerful people in America are infected with this thinking. Liberal Justice Elana Kagan voted as she did on Masterpiece because she understood the baker was subject to overt animus, such as a Colorado civil rights commissioner calling the baker a Nazi, that made his punishment appear to be arrived at predjudically. But then the "just a cake" non-argument rears it's ugly head in the much discussed bizzarroland footnote in her concurrence:
As Justice Gorsuch sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a ‘cake celebrating same-sex marriage.’ But that is wrong. The cake requested was not a special ‘cake celebrating same-sex marriage.’ It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike… And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with ‘religious significance.’
I suspect Jordan Peterson hasn't thought all this through, and I'm not surprised he hasn't because the public debate has been so bad. But there are abundant reasons to suspect that if it were explained to him, he'd get it. The fact a Supreme Court justice's can't see something so obvious and essential to the First Amendment, after she was specifically tasked with puzzling it out for months, well, that should keep people concerned with preserving free speech up at night.
By JR on Friday, June 29, 2018
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