Friday, July 21, 2017

Hate Group and Michael Stokes Paulsen redefine religious liberty

Michael Stokes Paulsen
Michael Stokes Paulsen is a bright, well educated guy and a professor at third-tier St. Thomas University School of Law in Minneapolis. In addition to his law degree, Paulsen has an M.A. from Yale Divinity School.

Paulsen is a guest lecturer at, and for, Family Research Council this afternoon. FRC is a hate group.

Today's seminar at Family Research Council is strictly amateur hour. Its title is “Four Objections to Religious Liberty … and Some Possible Answers.”

That title has Tony Perkins' oily, hate group leader fingerprints all over it No one has “objections to religious liberty.” People have objections to giving people a right to discriminate against people they disapprove of, supposedly due to religious beliefs. Attempting to re-frame the issue with a manipulative title is intellectually offensive.

I feel that I must digress for a moment and say that this also offends me as a former quality-management consultant. In a quality culture we do not give sales people boilerplate objection-response couplets. In contrast we fully explore the concern and then ask the individual to weigh the concern against the benefits of making a purchasing decision. This lecture at FRC, a hate group, smacks of providing people with talking points.

The outline for this lecture is presented as:
Four Objections to Religious Liberty
(and some Possible Answers)
Michael Stokes Paulsen
University Chair & Professor of Law
The University of St. Thomas
Presented to Family Research Council
(Washington, DC, July 21, 2017)

  • Paulsen, The Priority of God: A Theory of Religious Liberty, 39 Pepperdine L. Rev. 1519 (2013)

I. “The Law Should Be the Same For Everyone”
(There Shouldn’t Be Any Religious Exemptions)
  • Strong Intuitive Appeal: “Equality” and “Fairness” (and Relativism)
  • A Driving Force Behind Justice Scalia’s Opinion in Employment Division v. Smith
  • Is Religion Really “Like” Other Things?
  • Overcoming Intuition with Constitutional Text (and a different intuition)
II. “Religion Isn’t a Real Thing”
(“Why Tolerate Religion?” Mere Nonsense; Shouldn’t Protect)
  • If honest, the true motivation (of many)
  • The Inadequacy of “Liberal” Arguments for Religious Liberty
  • The text is still the text (The “Embarrassing” Free Exercise Clause)
  • The Rationality of Religious Faith
  • Paulsen, Is Religious Freedom Irrational? 112 Mich. L. Rev. 1043 (2014)
  • (reviewing Brian Leiter, Why Tolerate Religion? (2013)).
III. “People Will Abuse It”
(Spurious Claims, Insincerity, Incentives)
  • The reality of bogus claims, insincere assertions of religion, perverse incentives
  • Trumped-up claims; exaggerated claims of harm or burden on religion (same problem)
  • Slippery slope – plus analogous secular claims?
  • The Draft Exemption Cases: Welsh, Seeger, Gillette
  • Difficulty, almost impossibility, of sifting sincere from spurious (administrative burden)
  • Another driver of Employment Division v. Smith
  • Does the Objection Defeat the Rule? (Babies and bathwater)
IV. “Religious Liberty is Harmful to Others”
(The Problems of Ordinary and Extraordinary External Effects)
  • What kinds of “harms” count? (And how much should they count?)
  • The True Problem of Exceptional Harm
  • Reconciling Text and Third-Party Injury
Isn't that all just lovely (beginning with “the priority if God”)? Apparently Mr. Paulsen presumes to speak for his god.

The problem with all of this is that it does not fairly present the concerns that people have. The takeaway for attendees is that our objections are frivolous because Paulsen is begging the question. We are going to see a shitload of this nonsense as we get closer to oral arguments in Masterpiece Cakeshop v. Colorado. The real issues are:
  • States and municipalities have a right to pass nondiscrimination laws that protect LGBT people.
  • We all have a right to expect due-process in their passage.
  • In passing laws and ordinances lawmakers may consider whether or not to provide religious exemptions and to what extent those are applicable.
  • We believe that those exemptions are:
    1. Unnecessary and;
    2. Threaten the ability to enforce the law in its entirety.
  • Religious exemptions are unnecessary because (for example) baking a cake for a gay couple's wedding does not constitute approval of anything. It's just baking a cake. The religious objection is to same-sex marriage and no one is being forced to marry someone of the same sex. Anything further is tangential to the religious objection.
  • We believe that our rights to be treated fairly should be balanced against Free Exercise constitutional rights. Our position is that nondiscrimination laws do not rationally interfere with the right to believe or worship as one chooses.
  • Mr. Paulsen has no idea of what constituted the “driving force” of Justice Scalia's sober opinion in Employment Division v. Smith. He can only guess. The opinion, however, is unambiguous. Scalia asserts that religious exemptions make a law unenforceable.
  • People should obey the law!
  • There are various mechanisms for changing laws that people do not like.
  • A basic tenet of American jurisprudence and American culture is to protect minorities from the tyranny of the majority.
I am sure that there are more. However, Paulsen will address none of those real concerns. He is also not very choosy about who he associates with. Family Research Council claims that gay men are a persistent threat to children as relentless child molesters. FRC claims many things about LGBT people that are simply untrue. Those falsehoods are why it is designated as a hate group. I'll send Paulsen an email later in the day about that and his intellectually dishonest lecture.

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