4/29/17
http://www.newyorker.com/magazine/2017/05/01/the-book-that-scandalized-the-new-york-intellectuals
My take on a take, on Louis Menand on Norman Podhoretz's Making It
...I just read the essay by Menand. My problem with it is that after spending a lot of time describing the trajectory of Podhoretz's career, and even in describing it, he rarely rises above the terms of the book. So, significantly, in respect of this critical failure by Menand, he ends his essay noting Mailer's catty and petty rationale for turning about and dissing Making It in his review of it: Podhoretz hadn't seen fit to ensure that he, Mailer, be invited to a party thrown or attended by, I can't remember which, Jackie Kennedy. Menand's essay is full of gossip and backstabbing, of when Podhoretz was in and was out of which circles, how former friends turned against him. Nowhere did I see anything like a sustained evaluation of the book's merits or demerits and the reasons why. There is one genuine insight in the essay: Podhoretz writing first rate memoir, such his My Negro Problem..., but taking his own experience as the evidence for large and silly generalizing conclusions. Other than that insight, with smart evaluation built into it, I remember no others. Essentially, Menand's essay is well written, smart, at times judicious, at other times juicy, elevated Page Six stuff...
Saturday, April 29, 2017
Friday, April 28, 2017
Existentialism And Relgion: The Idea Of A Religious Existentialism
4/28/17
Something I wrote to a friend today on a small thread here prompted by an Introduction by Philip Maitre to famous essay by Sartre, the title of which I've seen translated as either Existentialism & Humanism or Existentialism Is A Humanism:
.... Religion and existentialism as I understand the latter may or may not go together.
For Kierkegaard they go together in his famous "leap of faith" after beholding a terrifying nothingness-- "fear and trembling." Thus, faith becomes his "purposes and projects," using Maitre's phrase from his Introduction. Why faith may be seen as existential is because insofar as existentialism is a philosophy of subjectivism, the leap of faith is from the terrifying apprehension of nothingness to the fullest realization of subjective fulfillment in something absolutely larger than oneself, (enough for Kierkegaard for Abraham to have slain Isaac.)
But would Sartre consider a leap of faith bad faith and what would distinguish bad faith from good faith, the latter comprised by purposes and projects that confer meaning and value on self, others, their relation and the world of objects?
For Sartre, as I understand him, purposes and projects must have a concreteness in the world and must involve in some way engagement with the world, which means necessarily with others. I can't make the intellectual move from that idea to a leap of faith into faith, which, however intensely and authentically felt and held, constitutes a reification, which is an engagement with "nothing" and by definition not the world, unless perhaps, maybe, (probably not) that faith translates into "good works."
As I say, my knowledge and understanding of Buber are skimpy to say the least, though I'm of familiar with his "I and thou," but only as a kind of catch phrase. I've always taken it to mean turning the "other" into a human being whom one, so to say, takes into one's soul and can therefore feel for them love, empathy, compassion and kinship.
Is that construction of "I and thou" right, and if it is what makes Buber's religiosity existential? And, finally, what resolves the gap or tension I see between Kierkegaard and Sartre? Or am I asking misconceived questions?...
Something I wrote to a friend today on a small thread here prompted by an Introduction by Philip Maitre to famous essay by Sartre, the title of which I've seen translated as either Existentialism & Humanism or Existentialism Is A Humanism:
.... Religion and existentialism as I understand the latter may or may not go together.
For Kierkegaard they go together in his famous "leap of faith" after beholding a terrifying nothingness-- "fear and trembling." Thus, faith becomes his "purposes and projects," using Maitre's phrase from his Introduction. Why faith may be seen as existential is because insofar as existentialism is a philosophy of subjectivism, the leap of faith is from the terrifying apprehension of nothingness to the fullest realization of subjective fulfillment in something absolutely larger than oneself, (enough for Kierkegaard for Abraham to have slain Isaac.)
But would Sartre consider a leap of faith bad faith and what would distinguish bad faith from good faith, the latter comprised by purposes and projects that confer meaning and value on self, others, their relation and the world of objects?
For Sartre, as I understand him, purposes and projects must have a concreteness in the world and must involve in some way engagement with the world, which means necessarily with others. I can't make the intellectual move from that idea to a leap of faith into faith, which, however intensely and authentically felt and held, constitutes a reification, which is an engagement with "nothing" and by definition not the world, unless perhaps, maybe, (probably not) that faith translates into "good works."
As I say, my knowledge and understanding of Buber are skimpy to say the least, though I'm of familiar with his "I and thou," but only as a kind of catch phrase. I've always taken it to mean turning the "other" into a human being whom one, so to say, takes into one's soul and can therefore feel for them love, empathy, compassion and kinship.
Is that construction of "I and thou" right, and if it is what makes Buber's religiosity existential? And, finally, what resolves the gap or tension I see between Kierkegaard and Sartre? Or am I asking misconceived questions?...
Thursday, April 27, 2017
The Black Eyed Blonde by Benjamin Black
4/27/17
Crime based noir + literature = The Black Eyed Blonde...
...by John Banville writing as Benjamin Black, the same John Banville who won the Man Booker in 2005 for his novel The Sea, which I most definitely will soon read.
I can think of a few writers of this genre whose works are literary.
Take Raymond Chandler for instance.
The thing is that Banville/Black purposefully channels Chandler, his protagonist being Philip Marlowe, agonizingly self conscious, so sad and so self disappointed but, too, self accepting and comfortable in his own skin, wonderfully articulate in the vernacular, totally down to earth, wry, vulnerable, sometimes a tough guy, sometimes overwhelmed, well read, a perceptive judge of others, often cracking wise though not hard boiled, but, above all, honorable, living unflinchingly according to his own code of honor, ethics and morality.
If every work of literature, (poetry too, in a way), is, as I argue it is, a search for self, a questing in the way of that by accumulating self knowledge borne of experience, then the Black Eyed Blonde exemplifies it as Marlowe comes to certain terms with himself over the progression of what happens.
And the writing, born of first person narrative, is, I think, flawless, perfect, with Marlowe having a distinctive come-alive voice and fully realized, compelling and believable sensibility.
Examples of this writing:
p 89 ‘I’m just your ordinary Joe, trying to earn a buck and stay honest. There are thousands like me, Mrs. Langrishe — millions. We do our dull jobs, we go home tired in the evenings, and we don’t smell of roses.’
p 106 ‘A tabby cat that had been sleeping by the door opened one eye and looked at me, then got up slowly and padded away, its tail lazily twitching. What is it cats know about us that makes them disdain us so?’
p 132 ‘You don’t realise how narrow the space you’re living in is until someone else steps into it.’
And in places the writing is beautifully evocative too:
p 134 ‘”To you a solitary life is unimaginable. You’re like one of those big fancy cruise ships, clambered all over by sailors, stewards, engineers, fellows in crisp uniforms with braid on their caps. You have to have all this maintenance, not to mention beautiful people dressed in white playing games on the deck. But see that little skiff heading off towards the horizon, the one with the black sail? That’s me. And I’m happy out there.”’
p 165 ‘Outside, the street was deserted, and a warm mist was wafting down from the hills. Across the way, the eucalyptus trees stood motionless in the light from the streetlamp. They were like a band of accusers staring at me silently as I got into the Olds. Hadn’t they told me so? Hadn’t they said I was a fool..?
…Ghostly waves were breaking in the moonlight, and farther out the night was an empty blackness, with no horizon…’
I don't know if Banville/Black out-Chandlers Chandler. I guess I'll have to reread some Raymond Chandler to find out
I can't recommend this novel strongly enough for sheer reading pleasure.
Crime based noir + literature = The Black Eyed Blonde...
...by John Banville writing as Benjamin Black, the same John Banville who won the Man Booker in 2005 for his novel The Sea, which I most definitely will soon read.
I can think of a few writers of this genre whose works are literary.
Take Raymond Chandler for instance.
The thing is that Banville/Black purposefully channels Chandler, his protagonist being Philip Marlowe, agonizingly self conscious, so sad and so self disappointed but, too, self accepting and comfortable in his own skin, wonderfully articulate in the vernacular, totally down to earth, wry, vulnerable, sometimes a tough guy, sometimes overwhelmed, well read, a perceptive judge of others, often cracking wise though not hard boiled, but, above all, honorable, living unflinchingly according to his own code of honor, ethics and morality.
If every work of literature, (poetry too, in a way), is, as I argue it is, a search for self, a questing in the way of that by accumulating self knowledge borne of experience, then the Black Eyed Blonde exemplifies it as Marlowe comes to certain terms with himself over the progression of what happens.
And the writing, born of first person narrative, is, I think, flawless, perfect, with Marlowe having a distinctive come-alive voice and fully realized, compelling and believable sensibility.
Examples of this writing:
p 89 ‘I’m just your ordinary Joe, trying to earn a buck and stay honest. There are thousands like me, Mrs. Langrishe — millions. We do our dull jobs, we go home tired in the evenings, and we don’t smell of roses.’
p 106 ‘A tabby cat that had been sleeping by the door opened one eye and looked at me, then got up slowly and padded away, its tail lazily twitching. What is it cats know about us that makes them disdain us so?’
p 132 ‘You don’t realise how narrow the space you’re living in is until someone else steps into it.’
And in places the writing is beautifully evocative too:
p 134 ‘”To you a solitary life is unimaginable. You’re like one of those big fancy cruise ships, clambered all over by sailors, stewards, engineers, fellows in crisp uniforms with braid on their caps. You have to have all this maintenance, not to mention beautiful people dressed in white playing games on the deck. But see that little skiff heading off towards the horizon, the one with the black sail? That’s me. And I’m happy out there.”’
p 165 ‘Outside, the street was deserted, and a warm mist was wafting down from the hills. Across the way, the eucalyptus trees stood motionless in the light from the streetlamp. They were like a band of accusers staring at me silently as I got into the Olds. Hadn’t they told me so? Hadn’t they said I was a fool..?
…Ghostly waves were breaking in the moonlight, and farther out the night was an empty blackness, with no horizon…’
I don't know if Banville/Black out-Chandlers Chandler. I guess I'll have to reread some Raymond Chandler to find out
I can't recommend this novel strongly enough for sheer reading pleasure.
Tuesday, April 25, 2017
Existentialist Bafflegab And Camus's The Stranger
4/25/17
On existentialist bafflegab and Camus's The Stranger
Philip Mairet in his introductory essay to Sartre's essay Existentialism & Humanism says that existentialism is a philosophy of subjectivism, that the root of all human anxiety is our need for authenticity, which itself is rooted in our need to know we exist. The dilemma of existence arises, he says phenomenology says, from our being caught between the unknowinginess of objects and our self unknowingness as perceiving subjects. In that in between lies epistemological chaos paradoxically coupled with our innate need, springing from our need to know we exist, to be responsible for our actions, that they be meaningful so that by that we achieve authenticity. We escape, strive to escape, the anguish created by these needs by starting with an understanding that so things are and not otherwise, are not what they are not. And we can transcend anguish, after that realization, by creating projects and purposes that then confer meaning on us as subjectivities and upon "the world of objects--all meaningless otherwise and in themselves." (P. 14) By so doing, we get the authentic knowledge we exist, our "transcendent need and desire." (P 14) Not many can do this. Most of us find reassurance by thinking about death as little as possible and by losing ourselves in the worship of "idols such as humanity, science, or some objective divinity." (P 15)
I think to myself that all this can't withstand even not very probing scrutiny.
The reduction of all human anxiety to an existentialist formula and catchphrase isn't argued for, isn't demonstrated, is just asserted without cause to agree with it. That we all in varying degrees crave affirmation and recognition is a truism rather than a truth and as such spawns simplistic self helpism rooted in self esteem as an all consuming premise. But that truism doesn't exhaust the sources of human motivation nor the causes of anxiety. Which is why to claim that it does is reductive and constitutes self help rooted in self esteem in principle undifferentiated from this existentialist notion, which is, to my mind, exactly self help rooted in self esteem gussied up in more dramatic and highfalutin language.
Same with the apparent "dilemma of our existence." Certainly, we can't fully know ourselves and we can't in principle know everything about the world of objects, which in fact we populate while we perceive them. But is the result of that really chaos giving rise to our anxiety and dread, which we can either run away from in bad faith or in good faith embrace and transcend by our purposes and projects? Again there is truism here more than truth, triteness masking as profundity. The world can be mystifying. There is so much we don't know. Most of us want purposeful lives and anxiety can certainly come from feelings of purposelessness, triviality and failure. But do we need pages and pages of arcane vocabulary to understand this? What sentient adult doesn't understand it, feel it. And thus we in the main try to give meaning to our lives in what we do, chased by a felt need to do. But in that, and in what we don't know, are we really in a universal condition of chaos marked by anguish? Surely this is vastly overstated. Surely, we, most of us, have sufficient provisional working senses of ourselves and the world such that we can get along albeit imperfectly but not mired in sickening dread.
Next to last, by what criteria are the existential projects and purposes to be measured? Mairet's Introduction gives no clue. If my purpose and project is to collect varieties of lint, then on what basis is that less transcendent than fighting to save lives? If the issue is subjectivity and the way out of enveloping nothingness, then on what ground does one's affirmation through a project stand over another's, especially if we lose ourselves in "idols" such as humanity or science? On what Mairet says, the lint collector haunted by the spectre of death and rising over it with the fabulousness of his lints will be more authentic, will live more fully, more meaningfully, than the curer of a terminal disease who doesn't think a lot of his own mortality. It is, I think, a telling mark against the corner in which the nihilist underpinnings of Mairet's argument force him that much less fancy folks than existentialists, of which less fancy folks I count myself as one, have no trouble seeing the greater human significance of the disease curer over the lint collector and which of them, likely, has the more fulfilled, meaningful life.
Finally, it is that very underpinning nihilism that makes an absurdity of Mairet's argument. Maybe we can't derive an ought from an is, some smart people think we can, but we can't for sure derive something from nothing. That is why Mairet can offer no criteria for distinguishing some purposes and projects from others, why they all stand equal under existentialist law. For if there were distinguishing criteria marking the better and the worse, the more important from the less important, the moral from the immoral, the purposeful from the purposeless, other than how they make us feel, then the very bottom of the argument--the meaningless of the world and ourselves in it-- falls out. The distinguishing criteria would spell out meaning that the bottom of the argument asserts doesn't exist.
And that, btw, is the unresolvable contradiction between Mersault's pridefulness and vindictiveness at the end The Stranger and the book's theme of absurdity, that nothing matters.
Friday, April 21, 2017
Spirit And Letter Of The Law
4/22/17
Question: is there such a thing as the spirit of the law and if so what can it functionally mean?
There may be such a thing, i.e., it may be something we can speak coherently about.
I'd say, if I had to try to define it, it's what the law aims at, its purpose or its intent, as derived from what the law says.
So in this sense, I can see talking about the letter and the spirit of the law: to take a dull example, there are complicated laws governing what equipment vehicles need to meet emission standards, the letter, the larger purpose of which is to curb air pollution, the spirit.
I don't see anything controversial in any of this.
But the bite can come, for examples: when the letter of the law seems inconsistent with the spirit of the law--say it can be shown that certain emission prescriptions don't curb emissions; or when someone violates the letter of the law but meets its spirit, say unprescribed emissions controls that work but still leave the driver non compliant with what's prescribed but can be shown ineffective.
The examples are endless.
With these examples, textualists, of which I'm one, will say, "Spirit me no spirit. If the plain language of the law points to a clearly understood meaning, then that ends the question of what the law is/means."
Mind you, if the language in question is ambiguous, capable of being read reasonably more than one way, recourse to overall language, structure, context and purpose are indispensable means of resolving the ambiguity. Judges, citizens, will want to favor the reasonably possible meaning that fits with the language structure, context and purpose of the overall law.
But the difference between my two examples and reasonably read ambiguity is that in the first cases there is a tension or gap between meaning and purpose with a proposal that the latter trump the former, while in the case of ambiguity, the effort is to try as much as possible to harmonize meaning and purpose, to try to make them seamless.
So my argument is that when literal meaning, the letter, seems at odds with overarching purpose, spirit, the former must prevail and in the sense of ostensible friction or a contest between the two, there is no prevailing meaning that can be given to the idea of the spirit of the law.
There is a doctrine of absurdity, which is to say, the law is not be read so as to lead to absurd results. While I'm not well schooled in this doctrine, my general, unnuanced understanding is that it's confined to evident drafting errors, "the scrivener's error," which is to say, manifestly the legislature cannot have intended provisions that are distinctly opposite, in fact countermanding of, what the law as a whole clearly intends. This is a very narrow doctrine.
If anyone wants to amplify, refine, raise questions about, or disagree with any of this, I'd be happy to consider any such.
Question: is there such a thing as the spirit of the law and if so what can it functionally mean?
There may be such a thing, i.e., it may be something we can speak coherently about.
I'd say, if I had to try to define it, it's what the law aims at, its purpose or its intent, as derived from what the law says.
So in this sense, I can see talking about the letter and the spirit of the law: to take a dull example, there are complicated laws governing what equipment vehicles need to meet emission standards, the letter, the larger purpose of which is to curb air pollution, the spirit.
I don't see anything controversial in any of this.
But the bite can come, for examples: when the letter of the law seems inconsistent with the spirit of the law--say it can be shown that certain emission prescriptions don't curb emissions; or when someone violates the letter of the law but meets its spirit, say unprescribed emissions controls that work but still leave the driver non compliant with what's prescribed but can be shown ineffective.
The examples are endless.
With these examples, textualists, of which I'm one, will say, "Spirit me no spirit. If the plain language of the law points to a clearly understood meaning, then that ends the question of what the law is/means."
Mind you, if the language in question is ambiguous, capable of being read reasonably more than one way, recourse to overall language, structure, context and purpose are indispensable means of resolving the ambiguity. Judges, citizens, will want to favor the reasonably possible meaning that fits with the language structure, context and purpose of the overall law.
But the difference between my two examples and reasonably read ambiguity is that in the first cases there is a tension or gap between meaning and purpose with a proposal that the latter trump the former, while in the case of ambiguity, the effort is to try as much as possible to harmonize meaning and purpose, to try to make them seamless.
So my argument is that when literal meaning, the letter, seems at odds with overarching purpose, spirit, the former must prevail and in the sense of ostensible friction or a contest between the two, there is no prevailing meaning that can be given to the idea of the spirit of the law.
There is a doctrine of absurdity, which is to say, the law is not be read so as to lead to absurd results. While I'm not well schooled in this doctrine, my general, unnuanced understanding is that it's confined to evident drafting errors, "the scrivener's error," which is to say, manifestly the legislature cannot have intended provisions that are distinctly opposite, in fact countermanding of, what the law as a whole clearly intends. This is a very narrow doctrine.
If anyone wants to amplify, refine, raise questions about, or disagree with any of this, I'd be happy to consider any such.
Sunday, April 16, 2017
A Few Sour Notes On Howard Jacobson's The Finkler Question
4/17/17
Oy vey!
I finally finished reading Howard Jacobson's The Finkler Question, which is one of those books I read very slowly over a very long period of time, at most 15 pages at a time, save for tonight when I read about 40 of its last pages just to finish. I didn't read it slowly in order to savor it or to pause meditatively over its parts. That's just the way I happened to read it for whatever the reason.
Basically I didn't like it and one reason is that I can't remember the last time I was so irritated by, impatient with, frustrated by, felt exasperated dislike for, a main character. Here, the utterly hapless protagonist, if he can be called that, there's so little that goes on, Julian Treslove, obsesses over wanting to be a Jew. (Don't ask: it's in this book a ludicrous premise.)
He's the personification of an obsessiveness that stops short of mental illness. He obsesses over who he is, over every little thing that happens to him--nothing big does--over his friendships, his relationships with women. He embodies the paradox of the kind of person who's so deeply and endlessly preoccupied with own puniness, failures, weaknesses and limitations that he's finally and essentially irritatingly self centered. He's self abnegation as self assertion.
That one reason blends into another one: I'd argue Jacobson invests himself in Treslove's unending interiority. Rumination, at least in one of its meanings, isn't a good thing. It's obsessive thinking. As a mode of anxiety it's compulsively going over and over the sources of distress. And as Treslove does little but ruminate, so Jacobson fancies that rumination an apt means of his, Jacobson's, questioning, answering, observing, discussing, exploring, disputing, presenting, joking about, explaining, talking about, satirizing, hectoring, all endlessly to an obnoxious fault, Jewishness in all its ostensible forms, manners and habits.
What Jacobson through Treslove has to say about the nature of Jewishness is typically so petty, so absurdly binary, so trivial, so essentialist, so over the top, so trite, so exaggerated, all in all so foolish, that it made me think as I was reading that "This guy, Jacobson, isn't really very smart after all, that no one but some fool who lives largely in his own pointy head could seriously think and write these things."
I'd argue that for Jacobson, Treslove isn't a detached fictional creation of a certain type of man. I'd argue, rather, that while clearly Treslove isn't an autobiographical character, Jacobson projects much of his own sensibility into him.
Now The Finkler Question, which by the book's terms means The Jewish Question, got a lot of good reviews and it won the 2010 Man Booker Prize. All that reviewing and prize winning glory made me wonder if my breaking up with the book was me and not it.
I surmounted my wonder, however, and concluded it wasn't me, it was it. And so I was gratified to see that a high toned critic like James Wood felt somewhat the same way. So if anyone wants to get a more concrete and detailed sense of some of the causes of my disdain for this novel while reading a spritely and acute piece of book reviewing at the same time, I commend Wood's article on Jacobson's work.
http://www.newyorker.com/magazine/2010/11/08/member-of-the-tribe
Oy vey!
I finally finished reading Howard Jacobson's The Finkler Question, which is one of those books I read very slowly over a very long period of time, at most 15 pages at a time, save for tonight when I read about 40 of its last pages just to finish. I didn't read it slowly in order to savor it or to pause meditatively over its parts. That's just the way I happened to read it for whatever the reason.
Basically I didn't like it and one reason is that I can't remember the last time I was so irritated by, impatient with, frustrated by, felt exasperated dislike for, a main character. Here, the utterly hapless protagonist, if he can be called that, there's so little that goes on, Julian Treslove, obsesses over wanting to be a Jew. (Don't ask: it's in this book a ludicrous premise.)
He's the personification of an obsessiveness that stops short of mental illness. He obsesses over who he is, over every little thing that happens to him--nothing big does--over his friendships, his relationships with women. He embodies the paradox of the kind of person who's so deeply and endlessly preoccupied with own puniness, failures, weaknesses and limitations that he's finally and essentially irritatingly self centered. He's self abnegation as self assertion.
That one reason blends into another one: I'd argue Jacobson invests himself in Treslove's unending interiority. Rumination, at least in one of its meanings, isn't a good thing. It's obsessive thinking. As a mode of anxiety it's compulsively going over and over the sources of distress. And as Treslove does little but ruminate, so Jacobson fancies that rumination an apt means of his, Jacobson's, questioning, answering, observing, discussing, exploring, disputing, presenting, joking about, explaining, talking about, satirizing, hectoring, all endlessly to an obnoxious fault, Jewishness in all its ostensible forms, manners and habits.
What Jacobson through Treslove has to say about the nature of Jewishness is typically so petty, so absurdly binary, so trivial, so essentialist, so over the top, so trite, so exaggerated, all in all so foolish, that it made me think as I was reading that "This guy, Jacobson, isn't really very smart after all, that no one but some fool who lives largely in his own pointy head could seriously think and write these things."
I'd argue that for Jacobson, Treslove isn't a detached fictional creation of a certain type of man. I'd argue, rather, that while clearly Treslove isn't an autobiographical character, Jacobson projects much of his own sensibility into him.
Now The Finkler Question, which by the book's terms means The Jewish Question, got a lot of good reviews and it won the 2010 Man Booker Prize. All that reviewing and prize winning glory made me wonder if my breaking up with the book was me and not it.
I surmounted my wonder, however, and concluded it wasn't me, it was it. And so I was gratified to see that a high toned critic like James Wood felt somewhat the same way. So if anyone wants to get a more concrete and detailed sense of some of the causes of my disdain for this novel while reading a spritely and acute piece of book reviewing at the same time, I commend Wood's article on Jacobson's work.
http://www.newyorker.com/magazine/2010/11/08/member-of-the-tribe
Religious Liberty: Sexual Orientation Compared To Racial Discrimination
4/16/17
Racial discrimination and sexual orientation discrimination in relation to religious liberty:
This note is prompted by an essay I just read that argued for, among other things, religious liberty to include the conscience based right to discriminate on the basis of sexual orientation, for example not to provide a public service for a gay marriage.
Please forgive my lack of nuance and any errors. I'm not a U.S. lawyer and this is essentially, but not totally, off the cuff. I did quickly look up a thing or two.
As I understand it, basically and generally religious liberty ends where other law begins. So that, for one example, the unburdened exercise of religion provided in America by the federal and various state RFRAs--Religious Freedom Restoration Acts--reaches one of its limits when it causes discrimination on the basis of a "protected class." A protected class is a term of art:
....In United States federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic...
Such characteristics include race, color, religion, national origin. States may in their own legislation on protected classes add characteristics, such as gender identity, not covered federally.
(I'm unsure of whether sexual orientation is a federally protected class. My at hand and working sense here is that it is for some purposes (say) in employment but not for other purposes. I'd be obliged to be enlightened on that point.)
In a nutshell, no one state licensed can in providing public services exercise their religious liberty if doing so discriminates against a protected class, for example refusing to bake a cake for an interracial marriage.
In my view, and again very broadly speaking, at least two of the pre-legal informing components in the creation of protected classes are rationality and cultural resonance, which is to say:
the utter absence of any rational basis to discriminate on the basis of a particular and evident characteristic, (say) skin color,
married to the felt understanding of that absence throughout society.
Sometimes courts on the basis of rationality will judicially pioneer lahead of sufficiently felt understanding. Sometimes felt understanding will precede lagging judicial recognition.
So to get to a case: some states don't recognize sexual orientation as a protected class; some do. Therefore, in the iconic example, in some states a Christian baker might rightfully refuse to bake or decorate--some case law distinguishes between baking and decorating--a cake for a gay wedding in the exercise of a sincerely held religious belief; in other states that same baker would be acting unlawfully and be subject to penalty.
To be sure, in neither state could that baker refuse with impunity either to bake or decorate a cake for an interracial marriage, race being a universal defining characteristic of a protected class, with sexual orientation being a defining characteristic of a protected class in some jurisdictions but not in others.
So the issue boils down to this, in *one* way of framing it: is there any rational basis for this kind of sexual orientation discrimination whereas there is none for racial discrimination? Why, in other words, shouldn't sexual orientation be an across the board basis of a protected class just as skin color is.
Me, I can't think of any reason.
So, I'd say that (say) bakers' unburdened exercise of their religious liberty should stop short where the law making sexual orientation a protected class ought begin. And, further, just as talk of "accommodating" racially prejudiced attitudes, religiously based or not, sounds to any fair minded person unacceptably wrong, so should any talk of "accommodating" homophobic attitudes, whether religiously based or not. The essential parallel between the cases rests, yet again speaking broadly, on skin color being as incidental to the imperative of equal treatment as is sexual orientation.
When it comes to sexual orientation it's time for cultural resonance and rationality to marry each other and to consummate their marriage.
A further word, just to put an emphatic point on all this: just as a religious leader is acting illegally in refusing to officiate at interracial wedding, so it should be illegal to refuse to officiate at a gay wedding.
Racial discrimination and sexual orientation discrimination in relation to religious liberty:
This note is prompted by an essay I just read that argued for, among other things, religious liberty to include the conscience based right to discriminate on the basis of sexual orientation, for example not to provide a public service for a gay marriage.
Please forgive my lack of nuance and any errors. I'm not a U.S. lawyer and this is essentially, but not totally, off the cuff. I did quickly look up a thing or two.
As I understand it, basically and generally religious liberty ends where other law begins. So that, for one example, the unburdened exercise of religion provided in America by the federal and various state RFRAs--Religious Freedom Restoration Acts--reaches one of its limits when it causes discrimination on the basis of a "protected class." A protected class is a term of art:
....In United States federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic...
Such characteristics include race, color, religion, national origin. States may in their own legislation on protected classes add characteristics, such as gender identity, not covered federally.
(I'm unsure of whether sexual orientation is a federally protected class. My at hand and working sense here is that it is for some purposes (say) in employment but not for other purposes. I'd be obliged to be enlightened on that point.)
In a nutshell, no one state licensed can in providing public services exercise their religious liberty if doing so discriminates against a protected class, for example refusing to bake a cake for an interracial marriage.
In my view, and again very broadly speaking, at least two of the pre-legal informing components in the creation of protected classes are rationality and cultural resonance, which is to say:
the utter absence of any rational basis to discriminate on the basis of a particular and evident characteristic, (say) skin color,
married to the felt understanding of that absence throughout society.
Sometimes courts on the basis of rationality will judicially pioneer lahead of sufficiently felt understanding. Sometimes felt understanding will precede lagging judicial recognition.
So to get to a case: some states don't recognize sexual orientation as a protected class; some do. Therefore, in the iconic example, in some states a Christian baker might rightfully refuse to bake or decorate--some case law distinguishes between baking and decorating--a cake for a gay wedding in the exercise of a sincerely held religious belief; in other states that same baker would be acting unlawfully and be subject to penalty.
To be sure, in neither state could that baker refuse with impunity either to bake or decorate a cake for an interracial marriage, race being a universal defining characteristic of a protected class, with sexual orientation being a defining characteristic of a protected class in some jurisdictions but not in others.
So the issue boils down to this, in *one* way of framing it: is there any rational basis for this kind of sexual orientation discrimination whereas there is none for racial discrimination? Why, in other words, shouldn't sexual orientation be an across the board basis of a protected class just as skin color is.
Me, I can't think of any reason.
So, I'd say that (say) bakers' unburdened exercise of their religious liberty should stop short where the law making sexual orientation a protected class ought begin. And, further, just as talk of "accommodating" racially prejudiced attitudes, religiously based or not, sounds to any fair minded person unacceptably wrong, so should any talk of "accommodating" homophobic attitudes, whether religiously based or not. The essential parallel between the cases rests, yet again speaking broadly, on skin color being as incidental to the imperative of equal treatment as is sexual orientation.
When it comes to sexual orientation it's time for cultural resonance and rationality to marry each other and to consummate their marriage.
A further word, just to put an emphatic point on all this: just as a religious leader is acting illegally in refusing to officiate at interracial wedding, so it should be illegal to refuse to officiate at a gay wedding.
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