Forgive me for a post that isn't tied together by a theme. Unless it's the theme of this entire blog: What's Wrong With the World.
First, in case you haven't heard, the State Supreme Court of Washington just ruled that Barronelle Stutzman broke the law and discriminated on the basis of "sexual orientation" by refusing to give florist services to a homosexual "wedding." Washington State even has a Defense of Marriage law, but the justices said that that has nothing to do with it. She now faces possibly crushing costs, including paying the legal costs of her opponents. ADF Legal is talking about appealing to the SCOTUS. Even if Neil Gorsuch were confirmed, that doesn't tell us what SCOTUS would do, not least because the court tilted left even when Justice Scalia was alive and might very well rule along the same lines as Obergefell that it's perfectly wonderful for homosexuals and their weddings to have protected class status at the state level and, hey, while we're at it, they must have it at the federal level too. Because of the 14th amendment, of course.
If you're not reading the Babylon Bee, you should be. They make you laugh when you want to cry. Dark humor and funny, biting satire. Their satiric headline after the recent ruling: "New Registry Allows Engaged Same-Sex Couples to Decide Which Christian Florist to Put Out of Business."
I saw the ever-witty Frank Beckwith, my former blog colleague, comment on a Facebook thread: "I had been under the impression that flower arranging was an act between consenting adults."
Er, yes. But then again, with anti-discrimination ordinances in place, is anything an act between consenting adults? Pretty much any service offered to the public can be compelled under "public accommodations" laws, so...
This raises the following macabre thought experiment: If prostitution is legalized in a venue that has specially protected status for "sexual orientation," can a prostitute be fined for refusing to have sex with would-be clients of the same sex? Makes your head spin, doesn't it?
Now here's my second unrelated link:
Jennifer Roback Morse tells about a Catholic couple that was given, as they understood it, the moral go-ahead by their priest to engage in in vitro fertilization. But nobody told them, including the technicians, that "extra" embryos would be made. They were informed to their shock, after the fact, that thirteen embryos were made! They attempted implantation with three embryos, one of whom survived and is now a teenaged girl. The other ten are still frozen. The couple is now divorced. The husband is trying in agony to figure out what to do with his ten frozen children.
All because of a priest who did not teach clearly and a lab that hid vital information from them. In passing, I have to wonder how the IVF company's failure to inform properly can not be litigable. Maybe there was something about extra embryos in the fine print and they just didn't read it carefully enough? Well, hey, a widget company makes more widgets than it expects to pass quality control, so that's presumably how the lab was thinking, too. Yet more evidence that IVF is just wrong, though this poor man is more to be pitied than blamed, I think. He got bad advice all the way along.
I'm sorry to have nothing more heartening to report in this post, except that where I live it's a particularly beautiful day, astonishingly warm for February, and that evil cannot conquer forever.
Comments (23)
On point two: what are his damages? Moral outrage and mental anguish, alone, are only compensable in a legal action if the defendant intentionally did something outrageous knowing or under circumstances where he should have known, that such outrage and anguish would result. A court would very likely find that the objection and anguish here is idiosyncratic, at least for someone going to an IVF clinic. Especially because the father doesn't have any out-of-pocket losses associated with the clinic's failure to disclose its process, he would have a tough row to how relying on the common law alone.
The common law deals much more comfortably and predictably with people who lose ascertainable quantities of money or property, or at least suffer discernible physical injuries, than it does with people whose purely intangible interests are harmed. (Note that the florist stalkers in the first link were pursuing a statutory cause of action, not one created or sustained by the common law alone).
In some ways it's unfortunate, of course. Maybe I'm wrong; maybe the father, if he had sued promptly, could have shown that it's objectively outrageous to fertilize a dozen of a couple's eggs without telling them that's what you're going to do. But I have read too many materialist legal decisions to be anything but skeptical.
Posted by Titus | February 18, 2017 3:16 PM
Actually, I'm pretty certain he does. Cryo-preserving them all this time presumably isn't free, and I would assume it would be his expense or his and his wife's, as they had a choice what to do with them. Unless that was covered by the original IVF fee. And if at this point he convinces his ex-wife to have them implanted, there will be, to put it mildly, further expenses.
But it's a sheer matter of information. I had been under the impression that fully informed consent is something medical practitioners worry about quite a lot because of potential lawsuits.
Look at it this way: Suppose that this guy was totally amoral but that his wife developed scruples about destroying the embryos. Or just that she wanted to have more babies than he did. (There *are* other legal cases where that kind of thing has happened.) And suppose that the courts awarded her custody, the embryos were implanted, some survived, and he ended up with child support payments. Even aside from any mental anguish caused by his own moral feelings, that would surely be the kind of *consequence* that a person would have the right to realize could happen. I don't see how the lab can saddle you with a bunch of embryos and all the possible ramifications of that without informing you ahead of time.
Posted by Lydia | February 18, 2017 4:26 PM
The Bee is awesome, but I think Duffelblog is a wee bit better.
The world is full of peril; but by my beard, if southern Michigan were to gain, even by human-generated global warming, the climate of northern Georgia, I really doubt the McGrews would complain. Not even once.
In Georgia we have had absolutely the most fantastic weather, and I welcome any climate change that delivers more winters like this one.
Who can read blog comments when it's 68, sunny, with a light NW breeze out of the Appalachians?
Posted by Paul J Cella | February 18, 2017 5:40 PM
Do you think the Barronelle result could set precedent that could be used to go after religious groups? Denny Burk has said he thinks it does. My understanding is the court has said her conduct was invidious discrimination not protected by the Constitution that the state has a compelling interest to stamp out. Seems ominous to me
Posted by DR84 | February 18, 2017 7:16 PM
DR84, it almost seems to me like we stand to lose more by an appeal to the Supreme Court. The court makeup is double-plus ungood on this issue, even if Gorsuch were both rock-solid and were confirmed (on both of which I have some doubts--various homosexuals coming around now talking about how "supportive" he is of their "marriages," though if he's *really* an originalist maybe it will be irrelevant...?). But really, just think if Scalia himself were still on the court and this case were appealed. What damage might be done by the same court that gave us Obergefell? Whom are we going to hope for a change from? Kennedy?
Yet I understand why the ADA doesn't just want to give up.
Paul, on the climate front, I don't want things like fire ants and other such nasties. I occasionally pass on the "this is why I live where the air hurts my face" memes on social media. But I can't find it in my heart to complain about a gorgeous day like today. For two evenings in a row I have gone out star-gazing on a gorgeous sky with not a cloud in it, no snow on the ground, and warm enough to enjoy it. And I sat out in the sun today and scratched the neighbor cat's head. Really lovely.
Posted by Lydia | February 18, 2017 11:00 PM
I share those concerns and also understand that there is good in just fighting tooth and nail for what is right. Hard to imagine Kennedy throwing his "gay rights" legacy away in order to side with Barronelle if they did take her case. If this case helps set a precedent that Barronelle's conduct is classified as invidious discrimination against a protected class in which there is a compelling state interest to eradicate, how much leeway do private/non-profit organizations have to invidiously discriminate and by doing so undermine the compelling state interest? That is the sort of question that seems to have no direct answer. As far as I know, the Constitution does not explicitly make a distinction between for profit public accommodations and non profit private organizations. So, it seems that it is possible that if the Constitution does not protect Barronelle's conduct it won't protect anyone else's either, including a church that won't act like a "same sex marriage" is a marriage. Which is not say that maybe there is no other legal protection, it just will be from various past precedents and legislation (such as RFRA). Speaking of RFRA, I would imagine the "compelling state interest" claim will make RFRA laws useless in these cases.
I am aware Barronelle has consistently lost, but it seems the state supreme court has amped up the language a lot...I dont remember hearing about this being invidious discrimination and there being a compelling interest to stop it before. Also, because they are appealing to the Supreme Court the stakes are much higher. What can happen if the Supreme Court effectively rubber stamps the Washington State Supreme Court's decision? That's what I am getting at mostly. Also, if that happens, the damage will be done and even if Trump could replace some of the court liberal's with originalists it is not likely they could do much for religious liberty.
Posted by DR84 | February 19, 2017 9:37 AM
From, The Age of Belief, Anne Fremantle, 1955 edition, pg. 104:
I guess history is going in retrograde, with the pagans attempting to reassert their very much flawed philosophy that the State is lord and master of man's necessity and morality. When, oh, when, will the Church make the Emperor knee in the snow, once again, for trampling on the forbidden area of a man's rightly-formed conscience? There cannot, now, nor ever be a true separation of Church and State if the State is to ever treat man according to his essential dignity seen in the light of God. It falls to the Church to defend conscience, but they have abrogated their strength of virtue for an easy comradery with the State. It has forgotten that Caesar and Christ rule two distinct kingdoms. It will pay the price if it does not strengthen itself with virtue.
St. Bernard, pray for us.
The Chicken
Posted by The Masked Chicken | February 19, 2017 3:14 PM
At a minimum, all the other cases in this vein that the ADF is defending will go south. Hopeless. States will be allowed to do their worst *at least* to for-profit businesses--the florists, bakers, photographers, etc., etc. A further possibility is that the 14th amendment will be interpreted to mean that homosexuality is automatically a protected class for all government action--e.g., all federal and state employers, contractors, etc.
Well, no, not necessarily, because SCOTUS can overturn its own decisions. If this case were decided wrongly, a later SCOTUS with a different makeup could overturn it. Not that I'm holding my breath.
Posted by Lydia | February 19, 2017 5:54 PM
Yes, I finally got a chance to read through the decision. The court does affirm a First Amendment right for religious groups to be free of anti discrimination law that could change force a change in the speech or ideology of the group. Which is good. It also references Bob Jones. Which was all about using anti discrimination law to change speech and ideology of a religious organization. Don't know what to make of that.
So perhaps if nothing else, whatever precedents protected Christian schools from getting Bob Jonesed could be undone if this gets rubber stamped. No big surprise there.
I would think the LGBT activists will be thrilled if the court takes this case. That alone would indicate the court is ready for another landmark "gay rights" case. Making sexual orientation a protected status federally is the next big goal after all.
Posted by DR84 | February 19, 2017 9:50 PM
On your point about prostitution: I recently saw an article online (sorry I could not find the link)about an unemployed woman in Germany. Since prostitution is legal and she was being offered a job at a brothel she face the choice of either becoming a prostitute or having her unemployment benefits cut because she refused a legitimate job that she could do.
Just WOW!
Posted by Matthew | February 20, 2017 10:59 AM
Yeah, that was some years ago. It was a real case, though we never heard the end of it. I'm going to guess that the unemployment board backed down rather than actually cutting her benefits. But in Germany, who knows?
I grant the similarity with my hypothetical case. If we treat prostitution as like any other job or service, then why wouldn't all the usual laws apply?
Posted by Lydia | February 20, 2017 12:57 PM
More to Titus's comment above about the extra embryos: I'm really, really betting that, "We may create up to x extra embryos" was somewhere in the diamond-point print, not that the lab was brazenly just not informing the people in any sense of "inform."
Even if one doesn't have a pro-life view of the nature of the embryo, there are about five different things one can do with extra embryos: Destroy them, donate them to science, freeze them indefinitely, keep implanting them oneself, or donate them to someone else for implantation. It is *entirely* plausible that a husband and wife won't have the same ideas about what to do with ten extra embryos, with all those choices. Even if one just looks at the embryos as "valuable property about which a decision has to be made with multiple options, some of them expensive, many of them contentious" the possibilities for controversy are pretty much endless. It would probably be legally risky to bestow ten *cows* jointly upon a couple as a result of a medical procedure without informing them that this would be the result of the procedure, much less ten embryos.
So I just don't think the lab would leave that out. I think they stuck it in somewhere in something the couple signed and didn't notice.
Posted by Lydia | February 20, 2017 1:01 PM
Matthew, that's horrible! Who could have imagined such a thing? The outrage to decency this manifests is shocking: any half-way moral community would rise up en masse against an official trying to pull this. That's the sort of thing that used to lead to tar and feathering.
I would hope that even the LBXTGNQZFWs would worry about Trump putting a second judge on the SC before a case was heard and decided. Not that Trump himself is at all reliable on the question of rights for GNQPRTXLBKs, but it's one area where the he may be willing to choose originalists even if they don't have the same attitude toward the issue that he does. Is it wrong for me to pray that several SC justices either kick the bucket or decide to retire? Or get cashiered? Or are forced to recuse themselves on edgy cases?
Posted by Tony | February 20, 2017 1:13 PM
They can't be forced. What's-her-name (was it Sotomayer?) should have recused herself on Obergefell after officiating at a homosexual "wedding," but she didn't.
Posted by Lydia | February 20, 2017 2:20 PM
I don't mean "forced" in the legal sense, but by pressure from outside: in a PR sense, for example. I don't know if Trump could make a "you should recuse yourself" claim stick, but at least it couldn't be hidden by the media.
Posted by Tony | February 20, 2017 4:51 PM
It is quite something how one sided the court ruled in the Barronelle case. They threw out the act/orientation distinction by saying "same sex marriage" is fundamental to a homosexual orientation. Yet they had no problems affirming an act/belief distinction. So Barronelle is free to believe but not free to act on what she believes. I get this is not the first time a court has come to these conclusions, but it never gets any less bizarre. Even disregarding the Constitution explicitly mentions religion and not sexual orientation, it is a fact that Christianity forbids acting like "same sex marriage" is marriage. Barronelle's choice to not act really is fundamental to her beliefs. Whereas there are no facts, no evidence, nor reason to support a claim that "same sex marriage" is fundamentally linked to a "homosexual orientation".
As far as I know, post Obergefell, the only thing being said to be fundamental to marriage in law is same sex conduct. One could be charitable and assume the judges if they had the chance would say opposite sex conduct is equally fundamental. Of course, assuming they believe in just one institution of marriage both cannot be fundamental. More amusingly, wouldn't saying so also be met with cries of homophobia? I can't imagine the PC crowd being OK with it being said that marriage is fundamental to a "heterosexual orientation".
On another note, if I recall correctly, WLAD came before legal recognition of "same sex marriage" in Washington. WLAD contains exemptions for religious groups, which of course the judges used against Barronelle. They basically said that this shows the legislature did not intend any exemptions for people in Barronelle's position. My understanding is that just like with Elane in New Mexico the legal recognition of "same sex marriage" was irrelevant. WLAD effectively implemented "same sex marriage" on its own even if the legislature had no idea that's what they were doing.
Posted by DR84 | February 21, 2017 2:23 AM
I was, to be entirely frank, assuming that they weren't charging him something extra. Sure, if they said "surprise, here are extra embryos, now pay," that would be different. Although since he wasn't legally obligated to pay to have them preserved, it's still not clear a court would regard those as losses caused by the clinic.
Medical practitioners care about informed consent because of medical battery claims. But here, what the clinic did with the eggs after withdrawing them didn't change what they did to the wife. So she likely couldn't say that she had been battered do to any lack of informed consent, because what the clinic did to her would have been just the same if they had not planned to fertilize extra eggs. For that claim to succeed, you have to show that the doctor didn't tell you (a) what he was going to do to you or (b) what the reasonably foreseeable range of outcomes from the operation itself was.
Sure, we can change the facts to create a claim. I don't say that to be a jerk, but we are throwing additional facts in here that materially change the analysis. If that happened, a court might look back at the clinic and say that it had an obligation to inform the couple that it was going to create extra embryos and that the couple could elect to have them preserved, and that its failure to do so was wrongful and contributed to this particular injury.
But a court would never hypothesize that this might happen and allow him to sue the clinic before it did. That would be purely speculative.
Of course, as you note, it's likely they did sign something to this effect.
Posted by Titus | February 21, 2017 2:07 PM
Sure, but the clinic's lawyers should (if they're smart) be thinking about all of those types of possible scenarios, since there *are* cases on record of custody disputes over embryos, and that could easily happen and create a lawsuit to a client (the clinic). And therefore saying, "Look, you need to put this in the language that they sign that they understand they will have up to x number of additional embryos that they will be responsible to decide what to do with."
In the case at hand, there has been a divorce. It would be interesting to find out whether he thinks the existence of the extra embryos had anything to do with that. If he could plausibly claim that it broke up his marriage, that would be an injury in itself.
Posted by Lydia | February 21, 2017 4:11 PM
"This raises the following macabre thought experiment: If prostitution is legalized in a venue that has specially protected status for "sexual orientation," can a prostitute be fined for refusing to have sex with would-be clients of the same sex? Makes your head spin, doesn't it?"
In many states it already is the case that a wedding photographer who refused to take photos of two men or two women romantically kissing each other will face fines, and based on the type of cases that have been decided so far probably very very steep fines. I know that is not nearly as macabre as being forced to have sex, but it still pretty disgusting to be forced to not just see two men or two women romantically kiss each other but to be the person who helps them pose and tells them when to kiss in order to best capture the moment.
Posted by DR84 | February 21, 2017 11:38 PM
Have you heard about Gary Suttles discrimination lawsuit? He is suing for hostile workplace for being required to watch a pro LGBT video.
https://www.washingtonpost.com/news/morning-mix/wp/2017/02/21/after-refusing-to-watch-lgbt-diversity-video-social-security-judge-sues-to-avoid-being-fired/
Posted by DR84 | February 23, 2017 11:38 AM
Here's to hoping he gets some success. I tend to doubt it, but stranger things have happened. There's no doubt that the LTXKNVQs are creating hostile work environments - that's their objective. They want everyone scared to death of saying anything that MIGHT be taken as offending them.
Posted by Tony | February 23, 2017 11:10 PM
@ DR84 & Tony: I just got done reading the assigned chapter in my clinical interviewing text (for my MSW program). For examples, the author tends to single out social workers who are male and/or Christian, using them to show either incompetence or discriminatory actions.
One example showed a male, though filled with good intentions, being culturally incompetent when greeting a young Pakistani woman (handshakes are seen as rude based on religion).
In couple of others he used Christians. The first to show how open-minded a male Christian social worker was when deciding to consult a young bisexual man who was thinking of exploring the furry culture; the social worker did not refer him to another due to his sexuality or his curiosity of furries. The second example was more severe. The social worker, also a lay minister in a Greek Orthodox church, had issues with the potential of consulting married couples thinking of divorce. Since he believed in the sanctity of marriage this was hard for him. He talked to his supervisor about referring them to another social worker to which he suggested ethical bracketing. I quote, "Peter was provided with extra training and resources, and with process couples can use to accomplish an amicable divorce. Further, his supervisor engaged in role plays with him in which Peter practiced using nondirective problem-solving procedures with clients seeking separation and divorce. Finally, to help him deepen his empathy for individuals who feel compelled to divorce, Peter was assigned to attend five sessions of a divorce support group." He now felt competent. Ethical bracketing came in when Peter offered marriage strength courses to the community.
I believe author's belief is if you are having issues dealing with a certain situation (divorce, abortion, contraception, LGBT - which he frequently uses as examples) you lack empathy. If you just developed empathy for X group you'll understand and therefore feel compelled to "check your values at the door" as the author states. Peter develops empathy for couples seeking divorce via sitting in on divorce support groups; Peter now understands the turmoil they're facing and, despite his belief in the sanctity of marriage, has no issue to help couple divorce due to empathy. Empathy. Where did I (we) hear this before? Oh yes, same-sex mirage.
Posted by GRA | February 25, 2017 1:12 AM
Wow, GRA, thanks for the details. I have heard of this sort of thing before, but usually in generic terms, so it is nice to be able to paint in the outlines with color.
And boy is it intolerant and un-diverse. It's funny how people who insist on tolerance and diversity can't see how they construct their own limits to that, and then they get to attack everyone who doesn't live according to THEIR sense of tolerance or "empathy". One man's empathy is another man's sin, (either that of cooperation with evil, or scandal, or both).
Posted by Tony | February 25, 2017 1:58 PM