yes, thank you howard for the very rich and detailed satirical piece...here here

Sat May 9 09:52:44 PDT 2009

Paul,

You missed my point. Howard said churches were the only ones trying to impose their values on others. Obviously someone (presumably not a church) is trying to impose values on the wedding photographer and on the Boy Scouts. The failure to recognize that is the only basis I can see for anyone to make a statement like the one Howard made. 

Mark Scarberry
Pepperdine

________________________________

From: Paul Finkelman [mailto:paul.finkelman at yahoo.com]
Sent: Sat 5/9/2009 9:31 AM
To: Scarberry, Mark; mairi morrison
Cc: CONLAWPROFS professors
Subject: yes, thank you howard for the very rich and detailed satirical piece...here here

Mark:

There is a huge difference between individuals refusing to particpate in something (like the photographer) and organizations that want to shape law and public policy to suit their religious beliefs. Whether the photographer's acts were based on him being a religous conservative simply becuase he was a homophobe, his acts did not force his views on others.  Similarly, IF we believe the Boy Scouts is a private organization, then it is free to discriminate.  

But the Boy Scouts organizations does not lobby against same-sex marriage or the distribution of condoms by the government or attempt to shape all family planning rules in the US.  The Boy Scouts does not abuse its tax exempt status to tell members how to vote as many Catholic Church leaders did in the last two elections.  

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

pfink at albanylaw.edu

www.paulfinkelman.com

	On May 9, 2009, at 11:54 AM, Scarberry, Mark wrote:

		Howard says:

		"There is a very good reason for this:  conservative Christian churches, including
		the Catholic Church, are the only ones in the U.S. trying to impose
		their values on the rest of us."

		Tell that to the wedding photographer who was fined for refusing to engage in expressive activity (creation of photographs intended to be beautiful remembrances of an event) at the request of a gay couple. Tell that to the Boy Scouts who are being denied lots of benefits they otherwise would be given but for their view of sexual morality.

		With apologies to Rawls, in a democracy the majority often imposes its values on the society. For the most part (e.g., laws prohibiting racial discrimination in employment and laws requiring parents to provide some sort of education for their children) that is a feature, not a bug. 

		On reflection I hope Howard will tell us his statement was not intended to be taken at face value but rather was satire or hyperbole somewhat like the "allegedly bigoted" statement that he was defending as satire.

		Mark Scarberry
		Pepperdine

________________________________

		From: conlawprof-bounces at lists.ucla.edu <http://us.mc01g.mail.yahoo.com/mc/compose?to=conlawprof-bounces@lists.ucla.edu>  on behalf of Howard Schweber
		Sent: Sat 5/9/2009 7:21 AM
		To: Curtis, Michael K.
		Cc: mperry at law.emory.edu <http://us.mc01g.mail.yahoo.com/mc/compose?to=mperry@law.emory.edu> ; CONLAWPROFS professors
		Subject: Re: the allegedly bigoted quote

		"Anyone who has been denied communion can't be all bad."

		1.  The statement is not bigoted.  A bigoted statement is one that
		implies the inferiority of individuals based on their membership in a
		class; in its most common usage the term refers to statements about
		members of ethnically or religiously defined classes.  The statement
		above says nothing negative about Catholic persons in general, it says
		something negative about priests or bishops who decide to deny communion
		to someone.  And those officials are not being criticized for their
		Catholicism, they are being criticized for their exercise of power.  No
		other belief or act that expresses their identity as Catholics is called
		into question, nor is any aspect of their personal character outside the
		specific decision to deny communion called into disrepute..

		2.  In contrast, calling someone an "anti-Catholic bigot" is a
		personally directed insult that asserts the moral inferiority of the
		target, at least for those of us who think bigotry immoral.  I see no
		comparison -- the second if a vicious personal attack, the former is a
		political critique couched in satire.

		3.  It is not true that statements of this kind are only heard with
		respect to conservative Christians.  Personally, whenever I teach
		Spinoza I observe that "anyone who could get himself excommunicated from
		the  Jewish community had to have something going for him."  No one has
		ever suggested that my statement is antisemitic, despite the fact that
		it is a much closer case (because Jews do not have a formal polity, so
		there is no distinction between "officials" and community members).

		4.  It is true that one hears more such comments about conservative
		Christian churches than about other religious authorities.  There is a
		very good reason for this:  conservative Christian churches, including
		the Catholic Church, are the only ones in the U.S. trying to impose
		their values on the rest of us.  More to the point, they are
		sufficiently powerful institutions, and sufficiently obviously represent
		the dominant, majoritarian religious authorities, that they have
		succeeded in imposing those values on the rest of us in the past.  It
		can therefore be reasonably expected that they will continue to attempt
		to impose their  values on the rest of us in the future, and that they
		will have some successes in those efforts.  The initial statement is
		therefore an example of a classic phenomenon:  satire as a weapon
		deployed against power.

		5.  The state action doctrine does, indeed, limit the applicability of
		the First Amendment to government attempts to silence or chill speech. 
		On the other hand, the manipulation of assertions of victimhood and
		accusations of prejudice is a well-established and long-recognized
		tactic that is employed to intimidate others from expressing
		themselves.  Stalinists do it, African-American politicians do it, some
		radical feminists do it, Zionists do it ... and conservative Christians
		have not been slow to embrace the same tactic.  It's not
		unconstitutional ... it's just despicable.

		hs
		_______________________________________________
		To post, send message to Conlawprof at lists.ucla.edu <http://us.mc01g.mail.yahoo.com/mc/compose?to=Conlawprof@lists.ucla.edu> 
		To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof <http://lists.ucla..edu/cgi-bin/mailman/listinfo/conlawprof> 

		Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

		_______________________________________________
		To post, send message to Conlawprof at lists.ucla.edu <http://us.mc01g..mail.yahoo.com/mc/compose?to=Conlawprof@lists.ucla.edu> 
		To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

		Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

	= 

	-----Inline Attachment Follows-----

	_______________________________________________
	To post, send message to Conlawprof at lists.ucla.edu <http://us.mc01g.mail.yahoo.com/mc/compose?to=Conlawprof@lists.ucla.edu> 
	To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof

	Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.ucla.edu/pipermail/conlawprof/attachments/20090509/6d27720b/attachment.htm>