Friday, August 30, 2019

Richard Hofstadter tried to explain it to us. Did we listen? Nope.

The late, great historian out of Columbia University, Richard Hofstadter (1916-1971), in 1964, in his now must-read again book, "Anti-Intellectualism in American Life," tried to warn us. Here is Hofstadter, at pages 133-134 of his book I am recently re-reading:

"There seems to be such a thing as the generically prejudiced mind. Studies of political intolerance and ethnic prejudice have shown that zealous church-going and rigid religious faith are among the important correlates of political and ethnic animosity (footnote omitted). It is the existence of this type of mind that sets the stage for the emergence of the one-hundred percenter and determines the similarity of style beween the modern right wing and the fundamentalists. In fact, the conditions of the cold war and the militant spirit bred by the constant struggle against world Communism have given the fundamentalist mind a new lease on life. Like almost everything else in our world, fundamentalism itself has been considerably secularized, and this process of secularization has yielded a type of pseudo-political mentality whose way of thought is best understood against the historical background of the revivalist preacher and the camp meeting. The fundamentalist mind has had the bitter experience of being routed in the field of morals and censorship, on evolution and Prohibition, and it finds itself increasingly submerged in a world in which the great and respectable media of mass communication violate its sensibilities and otherwise ignore it. In a modern, experimental, and 'sophisticated' society, it has been elbowed aside and made a figure of fun...(I)n politics, the secularized fundamentalism of our time has found a new kind of force and a new punitive capacity. The political climate of the post(WWII) era has given the fundamentalist type powerful new allies among the other one-hundred percenters: rich men, some of them still militant against the social reforms of the New Deal; isolationist groups and militant nationalists; Catholic fundamentalists, ready for the first time to unite with their former persecutors on the issue of "Godless Communism"; and Southern reactionaries newly animated by the fight over desegregation."

Wow.  Fifty-three years ago.

Yes, aging white Baby Boomers, let's look into our societal mirrors. When I read this book in college, I thought we would never succumb to the type of "get off my lawn" racism and xenophobia our parents and grandparents' generations were susceptible to in their politics and zealous religiosity. I laughed at Archie Bunker, and now, I realize a majority of my fellow male and female Baby Boomers were seeing Archie as someone they aspired to become.  In 2016, I started re-reading Hofstadter more for commemoration of the centennial of Hofstadter's birth, beginning with "The American Political Tradition," "The Age of Reform: From Bryan to F.D.R.," "The Progressive Historians: Turner, Beard, and Parrington," and "The Paranoid Style in American Politics and Other Essays."  When Trump announced in 2015, I had said on FB what concerned me was how Trump was "calling up the demons" long asleep or at least staying on the sidelines in American politics.  The Never-Trumpers, you know, the ones on MSDNC/MSNBC (you know these horrible Never Trumpers: Nicole Wallace, Steve Schmidt, Rick Wilson, David Frum, among others) all practiced a dog-whistle politics that played around with racism and xenophobia, allowed urban centers to rot for forty years (Nixon's benign neglect policy, which the original Neo-liberal, Daniel Patrick Moynihan, another jerk of a human being, pushed for Nixon), and pursued a foreign policy and trade policies that made desperate peasants go "El Norte" and decimated industrial communities throughout the center regions of our nation.  And the only place allowed in the discourse to their "left" were the corporate Democrats and Clintonites, the ones who played into those same dog whistles and told us there was no choice to march further to the right, to the anti-intellectual fundamentalism, etc.  I thought, though, as I read the essays in the "paranoid" politics book, maybe Hofstadter was too credulous at the way in which that paranoid, anti-intellectual politics could re-envelop a majority of citizens in our nation (or at least enough to elect a Senate majority and president).  As I started reading Hofstadter's essays and books again, however, I realized I did not have "Anti-Intellectualism in American Life," and ordered the paperback, after two failed times to get the hardback (both were mildewed and had to be returned; a metaphor there, maybe?). 

Anyway, I finally came back to this particular Hofstadter book in the last week, noting again one modern irony Hofstadter could have never predicted, which is the way American right wingers have accepted their Dear Leader Trump's cozy relationship with Russians without any shame for the way in which right wingers conducted themselves during the Red Scare throughout the Cold War.  However, Hofstadter's insights quoted above so apply to our present when I speak with, read FB posts of, or meet those people, mostly Baby Boomers, who still support Trump--especially as I begin to hear or read how they now think Trump has "kept his promises."  If any of them think that, please recognize the only "promises" Trump has "kept" are his promises which promote racism and xenophobia. Hoftstadter makes the point how evangelical white working class people, holding their guns and screaming their love of "God" or "Jesus," are in a coalition with rich people in our nation, allowing rich people to control the economy and our lives.  This continues to be one big con job on the working class. Yet, here we are at a point where Trump installs swamp monsters who hate the working class into Cabinet positions, continues to destroy any sense of government as a means to help people in any communal way, and triples-down on racist and xenophobic rhetoric.  And yet, a majority of white Baby Boomers continue to lap it up, slovenly, willingly, and with hatred and ignorance to guide them--attacking anything published in the NY Times or mainstream corporate media as completely "fake" and never discerning the distinctions  of 100 years of journalistic self-criticism, centered on exposing the "capitalist press" or "corporate owned media," which Will IrwinUpton SinclairGeorge Seldes, I.F. Stone, Ben Bagdikian, Chomsky, among others, tried to teach us.  I was privileged to be friendly with the founding dean of the UC Berkley School of Journalism, Edwin "Ed" Bayley, and his brilliant wife, Monica, during most of their retirement years in Carmel, CA. Bayley wrote "Joe McCarthy and the Press," based upon his experiences as a former news reporter who covered Republican US Senator from Wisconsin, Joseph McCarthy, for the Milwaukee (Wisconsin) Journal. Besides providing a blow by blow description of the rise and fall of Joseph McCarthy in the context of news reporting, Bayley posited the best way for a society to stop a demagogue is for the media to print the truth about what the demagogue says, compare what is said with that truth, and do so forcefully and consistently.  What Bayley could not foresee is the way in which cognitive dissonance works to filter out the truth and outright avoid the truth, just calling the newspapers liars without, again, any discernment from the type of self-criticism from journalists about how corporate media actually operates.

Not once do a majority of we aging white Baby Boomers look into that societal mirror to see how much our religious fundamentalists here, in hating the modern world, hating intellectuals, especially those in the modern monasteries we call college campuses, resemble the religious fundamentalists our Establishment's foreign policy promoted in the Middle East throughout and after the Cold War, killing off Pan-Arabists, secularists, and the like, and leaving, in the rubble and luxury skyscapers of the Middle East only the religious zealotry.  When right wingers tell me, I, as a naive "libtard," do not understand the Arab Muslim fundamentalists, I respond, Yes, I do. I am looking at you and the way you think, too. And to American Zionist Jews of even the liberal stripe--including those relative few who actually read the non-insightful historian, the late Bernard Lewis, or worse, listen to the likes of a Dennis Prager--who tell me, "You don't understand the Arab mind," I answer, "Yes, I do. I understand you. You, with your good versus evil. You, with your kill or be killed mentality when it comes to Arabs and Jews. You, with your cynical and blithe rejection of Jewish rabbinic philosophy's post-A.D. 70 universalism and reversion to Jewish tribalism. Yes, I understand all that, and, therefore understand, but do not agree with, any more than I agree with you, the tribalism expressed by too many Palestinians and Arabs who want their land back."

On a personal note, as I see how much people never click on links, believe click bait headlines, and ask for support for positions I previously and already provided over and over, showing they never got past a one line Twitter style reading of anything, I have wanted to just completely drop out. I have tired of uninformed opinions throughout the Internet, even including so-called journals and newspapers, and uninformed opinions stated with such confident vehemence.  This is particularly true regarding the topic of immigration, continues with the actual legal history of the 2nd Amendment, and the continued inability to see how much we, as a people, depend upon government to be a vehicle to help each other (I mean, just look at the smaller rural communities where the biggest employers often are, not Wal-Mart, but the school district or the prison, or state-wide, how often hospitals and universities are the states' largest employers, and not merely Wal-Mart).  I realize hardly anyone will read this long post. However, I write for posterity, the modern version of Victor Serge's famous lament that he wrote for his drawer.  I figure The Daughter will be my curator at some point in her life....:)

In that sort of frustration, maybe depression over nearly the last year, I finally decided three weeks ago to leave my daytime law job after a many years-long build up of my anger at the litigation system had reached a point where I could not even go into the office anymore. So much greed permeating both sides. So much rancor over the spoils of that greed. The entire tort system in our nation is a sick consequence of our society's inability to care for each other and represents a dog-eat-dog (sorry, dogs!) worldview where we try to bankrupt people and businesses for vengeance, which we mistakenly call "justice." So much creation of after-the-fact blame, finding ways to trap "deep pockets." All instead of simply and directly promoting public policies through our elected governments, policies which promote and help people regardless of whether any individual "deserves" something or not.  I often note to people in the litigation world how, in more socialist oriented nations, the tort system is almost irrelevant, as people know, if they are in an accident, they are taken care of no differently than anyone else.  Thus, there is less need to sue a doctor for a single mistake, where the cost of care and trial verdict will bankrupt and ruin the entire life of the doctor or maybe the hospital, even above insurance (not that I did that much medical malpractice defense, but I have seen and done some medical malpractice defense and some plaintiff side over the years).  There is rarely ever forgiveness in the tort system, often only blame and vengeance.

As I hit the age of 62 at the beginning of this month, and, as The Daughter, next month, begins her final year of college, I finally decided, for my own self-health for once, to make a move to get poorer, with The Wife's and The Children's (and Parents') support, particularly to start myself on a road to become a teacher--though an interesting opportunity for entertainment contracts law is suddenly beckoning, which was, ironically, my first goal as I completed law school so many decades ago.  Anyway, at this point, the current plan, as I dry out from 30 odd years of litigation, is for me is to teach High School History, though I admit I had, when arriving in New Mexico, wanted to pursue a PhD in American History and become a History professor--I had some great thesis papers I had wanted to write, too...Anyway, by the time I put The Wife and Family through four years of a thesis paper, I thought, who the hell would hire a white guy in his mid-60s for full professor track in this age of independent contractor-$2,500 a course adjuncts?  I don't want to leave this Land of Enchantment. At least, as a History High School teacher, I make a middle "middle class" wage, get health benefits and, for the first time in my life, a promise of a pension. Plus, I adore the high school students as they are beginning to form their own views of the world, are starting to think about what it means to be an adult, and are often looking for encouragement and support in that endeavor.  My goal as a teacher is to help the liberal or conservative among them see the contradictions and exceptions to their opinions--we are all wrong at one level or more--and recognize the continuing debate that is "History."  I did very well as a Mock Trial teacher-coach in high school back in our days living in Orange County, CA, and have always had a respect and an affinity for youthful thinking and their lack of patience with us Oldsters.  I have always lived with the much less known caveat to the 1960s student movement phrase "Never Trust Anyone Over 30, which was "Never Trust Anyone Over 30, Except I.F. Stone." Youth of today are not worried about age as much as Baby Boomers continue to be, though I think youth of today have more reason to hate their elders than our generation ever had, as it is not just about racism and xenophobia this time, it is about survival of civilization and survival of the planet, which transcends skin color and such.  When we see young white men killing people, I realize they are a frankly mentally challenged minority among the young and am thankful for that.  

But, back to the post.  

It is important to repeat the point here:  I never thought a majority of our generation of white Boomers would succumb to this current level of ignorance and hatred, and be so willing to destroy the legacies bequeathed from our great-grandparents (the ones who sent the ridiculously named Greatest Generation to war against Fascism after our great-grandparents pulled our nation out of the Great Depression) as my generation and parents' generation curdle up with their guns and hope to kill browner and other darker skin people--and white liberals. But, here we are. 

To the Kids of America, my message to you remains this: When we Oldsters rip you for speaking like lazy Socialists, do not lose faith in yourself. You don't really have to know Richard Hofstadter. Neither do your oldster parents and addled grandparents. You just have to know the philosophical world view of your parents is fundamentally flawed and this economic system is rigged against you (I mean, really, what does Trump care about the fact three people own more wealth than half the U.S. population?).  The Kids understand economic royalty--not desperate immigrants--are destroying the planet, slaughtering billions of animals in the process, and undermining any sense of community other than one that resembles the town in "Who Shot Liberty Valance?" before Jimmy Stewart's character arrives (Yes, I note the act of violence from the other gunslinger, John Wayne's character, saves the day for Stewart's character to survive and thrive...As I like to say, we are all wrong at one level or another...but isn't John Wayne then an antifa? Hmmm.....).  That film may be the film to watch after "The Mortal Storm," which was released just before the U.S. entered World War II, and dramatized how people fall into supporting dictatorships, always thinking the other guy will get his or hers, not realizing how often the people who support the dictators end up suffering, too.  You know, sorta like Trump supporters hurt by Trump policies but still support Trump as long as others who are not white "get theirs."  Kids, the key is to forget about most of us white Baby Boomers and come out and vote--vote past us. And please ignore every minority Baby Boomer who goes along with the white Baby Boomers who revere Trump. Yes, that has been a surprise to see among the Hispanic/Latino population here in New Mexico. I knew such confused, benighted people from an oppressed minority group existed in CA and also here. But seeing up close and personal Trumpist "minorities" has still been jolting and frustrating.  Hofstadter speaks of this phenomenon elsewhere in his book, too, writing how Irish Catholics, long despised and scapegoated among the Protestant class in 19th Century America, began to speak their language of the Know-Nothingness and other reactionary movements against continued immigration. Sound familiar, Sean Hannity? Sound familiar, Pat Buchanan? Sound familiar, Bill O'Reilly? Oh, there we are again. 

Even in my despair at the poorly informed, yet highly educated professionals I meet over the years, the poorly informed, less educated and white Baby Boomers glued to corporate cable television news, etc. I realize such people wonder why I continue to cling to the presidential candidacy of Bernie Sanders.  I do so because Sanders uses a form of rhetoric and policy analysis which would bring most Americans together, with a focus on public policy making, and directing our anger toward our better selves and better values, hopes, and a re-establishment of a communal sensibility.  Where I had disagreed with Hofstadter, and some other historians, is their elitist dismissal of the populist movements as too often animated by reaction and racism.  It is important not to throw out the hopefulness that was also an element within those movements.  Still, it is hard to discern the wheat from the chaff.  I therefore think back to Michael Harrington's last book, "Socialism: Past and Future," from thirty years ago, where he posited socialism will only come when it becomes obvious to a majority of people that we have to pursue kindness and forgiveness with each other, and use our elected government to help us, regardless of circumstances.  If our climate change throes do not lead to a ruining of civilization, and destruction of intelligence within society, our children and grandchildren may overcome our generation's and parents' generations' stupidness.  In the meantime, knowing I don't count, I retreat at the end of each weary work day into Hofstadter and reflect.  I retreat, just before bedtime, into Louis Auchincloss and Van Wyck Brooks, and reflect.  I have also gained the courage to retreat into becoming poorer and cutting our expenses--though The Wife said, "Hey, why don't you do a GoFundMe page to see if anyone will pay to read what you write for once?"  We laughed at that one!  Anyway, the monthly Internet bill is expensive, but it allows me the opportunity to at least communicate with others who have intellectual capabilities and understandings, something cheaper than a therapist.  

We will see what 2020 brings across our land.  The question is whether the Kids can overtake us aging Baby Boomers and our addled parents at the ballot box.  Come on, Kids. Save the planet and yourselves.  Save us from ourselves. I would hate to have to see you have to kill us in twenty or less years, for then I know we will have only taught you our own hate and ignorance. 

I provide a song for this post...Black Bonzo's "Sound of the Apocalypse"....The use of the song in this post has all the irony of Hofstadter's insight, which is to say apocalyptic thinking is ultimately irrational in most times. Hofstadter implored us to stay with reason, stay with governmental public policy making where we experiment with where particular lines are drawn, not worrying about "isms" whether capitalism, socialism, or the like.  Europe fought two horrific wars over "isms" on their own soil, which wars stretched to various places around the world. After their lands and people were ruined, they finally realized the argument over "isms" is terribly wrong. But, with the global economy, we are now in what I may call the Great Reaction against the changes wrought with globalization, and, worse still, more and more of Europe is beginning to succumb to the early to mid 20th Century ways of fascism.  It is a shame to admit otherwise enlightened rich people will embrace fascism rather than accept even a bit of socialism for regular people. Trump is part of the Great Reaction, which is an international fascistic movement. Thanks, Baby Boomers throughout the planet, too.  Ugh.  Oh well.  Sing it and play it, Black Bonzo.  Sing into the apocalyptic moment. 

Saturday, August 24, 2019

Since I knew you were coming, I refuse to bake you a cake

The same sex marriage anti-discrimination v religious free exercise conundrum continues to vex courts. The more I think about this issue, the more I have found myself coming more forcefully down on the side of the consumer who seeks a service for a same sex wedding. It is not easy, however, as revealed in this latest decision from the Federal Court of Appeals, 8th Circuit, Telescope Media Group v. Lucero (Minnesota Department of Human Rights), No. 17-3352 (August 23, 2019).

In Telescope Media Group, a husband and wife team operates a for-profit corporation which provides video services to the general public. In providing these services, they work with customers to produce the videos. The business has stated its intention to start performing wedding videos to the public. The question was whether Minnesota's anti-discrimination laws, which state a for-profit business cannot discriminate on the basis of marriage or sexual orientation, applied to require the husband and wife's business, which is again a corporation, to produce both opposite and sex marriage videos on a non-discriminatory basis. The corporation, and the husband and wife personally, stated this went against the religious beliefs of the husband and wife, who adamantly oppose same-sex marriage. 

When the wedding cake case was decided, I admit I said if the facts of that case were the gay couple wanted the baker to write a message on the cake which explicitly celebrated the two males getting married, mentioning their names, for example, I would have a harder time telling that baker the law forced him to write that on the cake the baker had made. I had a hard time getting around analogies such as, forcing an African-American baker to write onto a cake, "Happy Birthday, Nathan Bedford Forest, hero of the KKK" or telling a Jewish baker to write on a cake, "Happy Birthday, Adolf Hitler!" At some point, though, you want to say, Ya know, maybe our anti-discrimination laws don't require businesses to take on all customers for all reasons and purposes. And maybe free speech for thee may oppress free speech for me--as the right to not speak about something is as important as the right to speak about something; sometimes even more so. And really, is two gays wanting to marry really hateful? It is two guys committing to each other in a loving, romantic way. Sometimes, we must rein in our analogies. 

The majority and dissenting opinions in the videographer corporation case are well worth the full read, as each shows how the two opinions evaluate and interpret the same case precedent. What I kept asking myself, as I read the majority opinion was, "So, if this couple operating their video making for-profit corporation wanted to put at the end of every video, 'This couple's marriage is consecrated in accordance with our Lord, Jesus Christ," would that be okay, too? If a Jewish, Buddhist, Sikh, Muslim, or atheist couple wanting to use their services objected, could the business legally say, "Love it or don't do business with us?" What would be the societal consequence of allowing this type of business to operate in this way? I can easily foresee Jewish, Buddhist, and especially Muslim and atheist couples having a much harder time finding a videographer around many parts of the nation, can't you? Lots of Christians in the US still talk about "Judeo-Christian heritage," but hardly any talk about "Judeo-Christian-Muslim heritage."

Nonetheless, I find my own argument not so easy to apply when the majority and dissent talk about a musician who plays weddings. Would a Jewish wedding musician guitarist, let's say the musician has incorporated his or her business, be forced to play at a wedding of two Nazis who will talk about how they found love by their mutual hatred for Jews? We may ask, Why would two Nazis wanting to get married want to hire a "Jew musician," but sometimes such folks hire "Jew doctors" or "Jew lawyers," don't they? Heck, I knew blatant racists in New Jersey who loved Motown music. We know anti-Semitism and racism, if not as often homophobia, works in mysterious and irrational ways, as one may reasonably call each of these prejudices irrational and, as the courts often say, "invidious."

The challenge is enforcing pluralism. When we enforce pluralism, we fall into the conundrum of forcing people who don't believe in pluralism to believe in pluralism. This slide show gives us a basic understanding of what I mean. However, what concerns me is this: If we don't enforce pluralism, we may find our society goes backward, as stated at pages 56-57 of the videograoher case's dissenting opinion, in terms of allowing discrimination to begin to thrive once again. What the cake baker case and this videographer case are showing us is what I have long worried about when trying to judicially carve out protections for homosexuality in a society only recently beginning to find what I can call enlightenment regarding the irrelevancy of same sex sexual conduct and opposite sex sexual conduct. What people do in their private lives in matters of sex should really be of nobody's concern. The question, however, becomes more public with a wedding, and, for awhile, I would side with libertarians saying, Get the government out of the marriage business so it is not entangled with individual people's religious views. But the baker case and this videographer case are not about the government entangling itself in religious philosophy in quite the same way. These cases are about a very secular idea that people who are not of a majority religion, people who are gay or lesbian, etc., have the same right to participate in society as those of the majority of people who are of a majority religion or are heterosexual--and the government enforcing that right against private businesses owned by people who oppose the minorities in those instances. The secular idea being enforced, again, is pluralism. 

I tend to blanch at most "isms" as I find profundity within my old, now departed lawyer boss' view that every great idea becomes wrong when a majority of people agree with it. This glib remark contained a profound truth, which is we only get to see the abuse of an otherwise good idea when the majority of people begin to act as if the idea is a bedrock truth. One may easily say, Ah, let this anti-homosexual couple, with their closely held corporation, do what they want. There must be plenty of other videographers the same sex couple can find. But are there many choices for a same sex couple in many parts of our nation? And what happens when this viewpoint the videography service couple wish to express through their business becomes more and more "popular" in the region or area where the couple operates their business? What then? Is this case allowing for a setting up of enclaves where homosexuals are entering essentially "sundown towns" where they are not generally welcome? If so, then anti-discrimination laws may be rendered hollow and the people who were supposed to be protected are betrayed.

On the other hand, I keep coming back to the musician who plays weddings generally. May the musician say, "I only play Christian weddings? I won't play for Jews, Muslims, etc. because I won't play their songs?" Somehow, I find that a more difficult situation to resolve than the videographers in this case, though I would not call this videographer case so easy, either.

Interestingly, the majority of the 8th Circuit Federal Court of Appeals left itself open to revisiting this case, because of the fact the case came before it as a motion to dismiss, which requires the Courts to view the complaint's allegations as automatically true as to the facts alleged. At page 9 of the majority opinion, the majority of the Court of Appeals stated:

The dissent reaches the opposite conclusion, but only by recasting or ignoring the allegations in the Larsens’ complaint,3 which at this stage we must accept as true.See Miller, 688 F.3d at 933 n.4. The complaint makes clear that the Larsens’ videos will not just be simple recordings, the product of planting a video camera at the end of the aisle and pressing record. Rather, they intend to shoot, assemble, and edit the videos with the goal of expressing their own views about the sanctity of marriage. Even if their customers have some say over the finished product, the complaint itself is clear that the Larsens retain ultimate editorial judgment and control. 

Footnote 3: The dissent is a moving target. At certain points, it seems to assume that the Larsens’ speech is protected, at least in some form. See post at 43; United States v. O’Brien, 391 U.S. 367, 376 (1968) (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First amendment freedoms.”). At others, the dissent suggests that the videos are not speech at all, primarily because the Larsens are telling someone else’s story as part of a for-profit service. See post at 48-49. The dissent’s scattershot approach may be due to the fact that neither of these theories (or any of its others) finds support in Supreme Court precedent or opinions of this court. 

The appellate court claims the complaint makes "clear that the Larsens retain ultimate editorial judgment and control." However, having dealt with a wedding videographer when The Wife and I married in 1987, and knowing how videographers work with wedding couples over the decades since, I don't recall videographers having any ultimate judgment and control over the content of a wedding couple's video. Most Jewish couples would not countenance a videographer editing out what the rabbi said if the couple wanted what the rabbi said included in the video. The videographer would not include something I objected to as the customer. For me, I can't wait to see the depositions of the husband and wife owners as the State's lawyers ask such questions about what they allege is their "ultimate" control over "content." This statement in the majority opinion formed a lynchpin as to why the majority Court of Appeals judges reached their decision. It is why the majority threw in footnote 3 to castigate and belittle the dissent. When I read the dissenting opinion, I concluded footnote 3 is almost insulting to the intelligence of the dissenting judge. In fact, the dissenting judge's reasoning was decidedly "not a moving target." For example, the dissenting opinion stated, at page 49:

Admittedly, the Larsens take great pains to portray themselves more like independent artists telling their own story than messengers acting on behalf of others. At oral argument, their counsel compared them to “Steven Spielberg, edit[ing] the film[s] to express messages” consistent with their personal and religious views. Oral Arg. at 0:00–1:05. But Steven Spielberg is not a public accommodation; he does not make his filmmaking services generally “available to the public.” Minn. Stat. § 363A.03 subdiv. 34. He is thus free to use his talents as he pleases without regard for laws like the MHRA. If the Larsens truly were artists speaking their own message, then TMG similarly would not qualify as a place of public accommodation and this entire lawsuit would be unnecessary.

The law regarding the procedure known as a motion to dismiss is, again, generally, a court must accept as true the factual allegations in a complaint. However, there are twilight zone areas even within that simple, straightforward legal proposition, especially if a court finds the fact averred is one which runs toward or to the absurd. To compare the videography corporation making videos for wedding couples to an independent film producer/director, who is making what is considered artistic personal expressions, is quite a stretch. The question, however, is that a sufficient stretch to reach the dissent's conclusion at this stage in the litigation? What bothered me about the majority opinion, after reading the dissent, was how the majority acknowledged, through footnote 3, they read the dissent. However, the majority ignored and refused to deal with what the dissent finally reaches, at page 50 of the dissent, which is his point about a hypothetical photography business deciding not to take photos of Muslim women in their hijabs or take photos of an interracial couple. The majority opinion did not expressly state they would draw any distinctions, hiding behind the motion to dismiss procedure and making it sound as if they may revisit the issue after discovery and a motion for summary judgment, for example.

Nonetheless, that musician hypothetical keeps coming back to me. I just don't know what to do about that one, and I find it harder to tell the musician what to play than telling this little corporation to just make the same sex marriage video, for goodness' sakes. What we are seeing in this particular moment in U.S. History is an argument that has emerged about whether pluralism is a societal good that should override (I won't say "trump" any longer for what I hope are obvious reasons) the "right" of people to oppose pluralism. And I realize we are perhaps drawing lines that are not so clear anymore, as the corporation's husband and wife owners admitted--yes, admitted!--in their complaint they would continue to serve gay and lesbian customers, just not prepare the videos for their weddings. At page 24, in the majority opinion, as the majority were rejecting the corporation's "freedom to associate" claim, even as the majority were upholding the "free exercise of religion" claim:

Indeed, the Larsens’ allegations all but doom their associational-freedom claim. The complaint stresses that the Larsens will “gladly work with all people— regardless of their . . . sexual orientation”—as long as the message of any video they are asked to make fits with their religious beliefs. The Larsens’ counsel reinforced this point at oral argument, explaining that they would have no problem making other types of videos for gay or lesbian customers. It is clear, then, that serving, speaking to, and otherwise associating with gay and lesbian customers is not the harm they seek to remedy. Their real objection is to the message of the videos themselves, which is just another way of saying that the MHRA violates their free- speech rights.

It sorta makes us wonder, is it really so important for this videographer corporation to not prepare a video for a same sex wedding compared to the importance of a gay or lesbian couple to participate in our society when they wish to marry? Is the videographer corporation's right to pursue its shareholder-owners' religious views sufficiently compelling to justify turning away a gay or lesbian couple, particularly in an area where the gay or lesbian couple may not find any business will videotape their wedding, even though state laws prohibit discrimination against them in general? Courts should look at the consequences of their decisions, and should ask, What is the purpose of anti-discrimination laws in the first place, and how does ruling against the state promote or harm that purpose? Yes, the majority opinion is careful to note the question, but I find the majority opinion is ultimately glib for not truly grappling with what I am saying here. The majority almost completely ignores the point made about a videographer who wants to include references to the Lord, Jesus Christ in every wedding video, something I believe will definitely come up in cross examination in the couple's depositions.*

I believe we will see the smarter courts grappling with the concept of pluralism, and may find themselves, if they have the integrity to be honest, determine the question of whether pluralism can be enforced with respect to beliefs that affect whether consumers have a right to fully participate in society. These courts may determine if they may honestly draw distinctions between, for example, wedding photographers and videographers on the one hand, and wedding musicians on the other. I wonder if courts will have to draw distinctions between content that is obscene (oh, that again!) and those which are personally insulting (Nazi cakes and Jewish bakers; harsh, snarky, sarcastic political statements) and those situations which concern a general refusal, such as this husband and wife owned videography corporation simply saying, "We will not perform our services at same sex weddings...at all." I have some doubt about whether the current crop of judges, particularly those President Trump and the Republican led Senate have placed on the bench, are ready for this type of discussion and request for fine distinctions. I wonder about their commitment to pluralism and anti-discrimination laws on behalf of truly and historically oppressed communities in our nation. I go on at length here because I did not really see that type of grappling in the long majority and dissenting opinions, though I think the dissent is much closer to the mark to what I have been discussing here. Sadly, I have little hope the US Supreme Court majority will modify or overturn the 8th Circuit Federal Court of Appeals. I think the majority of the Supreme Court justices, if they accept review of this case, will affirm the 8th Circuit Federal Court of Appeals.

In closing, let me say it as plainly as the late Yale Law School professor, Fred Rodell, would have said, Elections have consequences, folks. As I considered this majority opinion, and the initial reaction from David French (a noted "Never Trumper" who objects more to Trump's style than substance in many instances), in the right wing journal, the National Review, I began to fear for our gay, lesbian, and transgender, citizens, who may think they have equal rights to participate in our society, but may find doors increasingly closed to them, despite the laws they and others fought so hard to pass. 

* I could not help noting how the majority and dissenting opinions kept referring to the husband and wife by their personal names, and glossed over the fact that, while the husband and wife couple were also plaintiffs, the Minnesota Human Rights Department was challenging the videographer business' assertion to not provide services for same sex weddings, not the couple on an individual basis. The majority and dissenting opinions did find the husband and wife each had standing to sue, again, despite the fact the husband and wife were not the corporation, but only shareholders who owned stock in the corporation. I don't chide the majority and dissenting judges, however, because this is a consequence of the Hobby Lobby case, where the majority of the US Supreme Court Justices suddenly found a for-profit corporation had the same religious rights as an individual or even a not for profit church. Justice Alito's majority opinion was an exercise in cynicism to hold the Religious Freedom Restoration Act, in including corporations in the definitions section of the act, meant Congress was expressly and fully including for-profit corporations within the Act. Funny, I do not recall ever seeing a corporation sitting next to me in a religious institution's pew. Yes, I am being glib. However, it is patently ridiculous to believe a for-profit corporation selling goods and services to the general public practices a "religion." The reason we have human beings and not computers engage in jurisprudence is to avoid absurdities. Unfortunately, Alito's conclusion, which four other justices joined, was an absurd one with regard to basic corporate law, where the reason individuals set up corporations is to separate the owners of the stock from the entity being created, that is the corporation--including the avoidance of personal responsibility. Also, Alito knows damned well courts have long held corporations have no 5th Amendment against self-incrimination. That is bedrock law for as long as courts have also held corporations are "persons." Wheeler v. United States, 226 U.S. 478, 488, 489 (1913), Hale v. Henkel, 201 U.S. 43 (1906). Yes, an exception has sometimes arisen with regard to closely-held or one person corporations, but only to the extent the individual is too tied up with the company. But even then, with respect to the 5th Amendment, we are talking about a criminal prosecution against the individual. Here, Minnesota was telling the corporation it cannot discriminate when selling its products and services to the general public. The State's Human Rights Department was expressly saying to the husband and wife, We, the State, are not telling you what to do in your private life. However, you have chosen to incorporate and chosen to sell goods or services to the general public. Also, if one forms a corporation to avoid personal liability, the essence of a corporation, how does one suddenly insert one's own personal, private religious views into that for-profit corporation selling goods and services to the general public? I get it that Hobby Lobby, an international for-profit corporation, happened to be a relatively closely held corporation, meaning it had a relatively small number of shareholders and was a privately held corporation, not a publicly held one, such as McDonald's or Disney. But really, courts should not be shielding their eyes from what is obvious about Hobby Lobby. Hobby Lobby is selling products and services to the general public no different than McDonald's. Anyway, that is my beef with Alito and Co. and I guess the Justices were lucky I was not in the conference room when the Hobby Lobby case was being discussed. I would have brought in a corporation law text book and pounded it on the table after reading the first chapter to them. :)