Stupid Lawyer Tricks at Starbucks?

Peter at Texas Hold 'Em and Patrick at Badger Blogger have commented on the decision by the Starbucks at 76th & Layton to cancel a gig by a Christian musical group - apparently because of the complaints of one customer. It was apparently reported on Belling's show. (Why anyone was listening to Belling when I was a short trip up the dial is beyond me, but that's taste for ya.)

Starbucks deserves whatever bashing it gets, but this is actually a scarier scenario than Peter and Patrick and Belling have already suggested.

There is a substantial possibility that Starbucks' lawyers advised them to dump the Christian band. Here's why. Starbucks is a public accommodation under the Civil Rights Act. As such, it can't discriminate on the basis of religion. That much is clear and all good.

The problem is that courts have developed the concept of a "hostile environment." You can discriminate against someone by creating an environment in which he or she is uncomfortable because of your conduct based on race, sex, etc. Mostly this concept has been used in sexual harassment cases. Think of the female worker who complains because the employer allows a male "locker room" environment on the shop floor.

But while it is an idea that grew up in cases involving hostile environments for women, its not limited to that context. People have argued that employers who put bible verses on their paychecks or even the Washington Redskins (by using their name in a stadium that is a public accommodation) have created an unlawful hostile environment.


Am I defending Starbucks? No. I still think there is room for a more reasonable interpretation of the law to prevail. But I am pointing out the ways in which lawyers and courts can take perfectly reasonable statutes and turn them into something Orwellian.

We are beyond the looking glass, people.

I am taken by the media's insistence to know how long it was between the time that Cheney was identified as "the shooter" and the time that the incident was disclosed to the public.

How easily they are duped. Cheney was not the lone gunman. Bush (behind the grassy knoll) and Rumsfeld (behind the other grassy knoll, I suppose) provided triangulated crossfire.

Whence WTPA?

Xoff celebrates and Charlie Sykes laments the potential opposition of three GOP Senators to the Taxpayer Protection Amendment. I'm thinking that the fat lady hasn't even begun to loosen her vocal cords.
The problem for opponents is two-fold. First, as the Journal-Sentinel's star community columnist once noted, Wisconsin imposes above average taxes on below average income. (Original insight, that.) This is what business people call a brutal reality. It is a problem that you can't wish away. Second, the WTPA sounds fairly reasonable. Why should government need to increase its revenues by an amount greater than inflation and the increase in persons to be served? It certainly is true that some costs, say energy or health care in a given year, may increase at a higher rate, but this is the kind of thing that households have to manage all the time. My guess is that most Wisconsin families have faced an increase in their home heating bills far in excess of their salary increases. Its going to be hard to explain why, if incomes go up y percent and the population goes up x percent, why government ought to take an increase greater than y adjusted by x.

Throwing around terms like "ravage," "slash" and, for the polysyllabic, "eviscerate" is not going to seem right.

Shark and Shepherd on the Air

I will be on Eric Von's show this afternoon at 3 (WMCS-1290 AM) debating Joel McNally. Something about how the Republicans have decided that the Democrats are mean and angry. Decided?

Carter Would Have Missed

Vice President Cheney actually shot a fellow hunter yesterday. Must have been faulty intelligence.

In related news, PETA expressed relief that the bird was unhurt.

Cheap Trick?

Something about this story bothers me. An Episcopal priest in Delevan dressed up like a homeless person and sprawled outside the entrance to church on Sunday morning, rattling a cup and asking for money. Apparently this showed the moral laxity of his even his generous congregaion (or "of us all") because only a half dozen folks invited him into church or because he only scored $ 23. I'm not sure.

I understand the Matthew 25:40-ness ("Whatever you did for one of the least of these brothers of mine, you did for me") of this. I also acknowledge the need for us to get out of our comfort zones in bearing witness to the radical nature of Christian love, but I still find it offputting. Maybe part of it is the sense that Fr. Myrick was playing a game with his parishioners. I am not a clergy person but I do preach every once in a while and I am all for challenging the folks in the pews. Still, this strikes me as too cute by half. It doesn't seem like any of the parishioners minded, but this raises trust issues for me. I don't want my priest making me an unwitting participant in his morality play.

The other seems to be the presumption that people who are wary of scruffy homeless beggars are somehow in need of major reform. There are very real issues concerning the proper way to respond to street people. My own church is in downtown Milwaukee and the clergy there have a rather rigid rule (for themselves) against giving street people money. I have violated that rule twice in the past year and I suspect that I did little more than enable someone to continue substance abuse. The clergy will invite them inside and even offer food if they have it, but no money. Ever.

And that makes perfect sense. The correlation between street begging and substance abuse may not be 1:1, but it is very high and enabling someone's continued self-destruction isn't really a very Matt. 25:40 thing to do.

Yet money is exactly what Fr. Myrick sought. He didn't speak to them (he couldn't), he just dressed himself up to look like someone with a drug or alcohol problem and rattled a cup at them. Its not surprising that the congregation wasn't sure what to do. He may have dramatized an issue that rarely arises in places like Delevan, but I am not as sure that he taught his congregants any sort of lesson about themselves.

Funeral Update

Ben at Badger Blues thought about St. Thomas Beckett in connection with Coretta Scott King's funeral. That's good. What isn't so good is his suggestion that there is some parallel between Beckett's martyrdom and its role in establishing the rule of law, King's martyrdom and its role in bringing about an acknowledgment of the evil of racial prejudice, and turning Coretta Scott King's funeral into an opportunity to embarrass the President.

How would that connection made? Bush going to Mrs. King's funeral was sort of like when King Henry II had to, you know, wear like sackcloth and ashes and get whipped by these monks because - the King? - he murdered St. Thomas Beckett. And then it was like the King had to obey the law just like a regular dude. So at the funeral, you know, they actually made Bush sit and listen to what a tool he is. Way cool.

On a certain level the fact that four Presidents (from both political parties) attended Coretta Scott King's funeral does suggest an enormous sea change in our political life in a very short time frame. We have come, in a relatively short period of time, to an almost univeral consensus about an idea that was once very controversial and the idea that King was martyred for that idea is not a new one. But the fact of that sea change and the significance of that martyrdom is what makes the behavior of Rev. Lowery and our worst ex-President so disgusting.

Martin Luther King and his wife are widely admired (there's the sea change)because of their commitment to the notion that persons ought not to be treated differently on the basis of their race. You can argue that they did - or would have - supported a whole slew of liberal positions on Viet Nam, Iraq, affirmative action, etc., but their moral authority is based upon that single proposition. We remember Dr. King because he dreamed of a day when people would be judged by the content of their character and not the color of their skin. Perhaps he also dreamed - or would have dreamed - of a day when 30% of municipal contracts would be set aside for minority owned businesses or of a day when we would spend even more than the trillions we have already spent (for good or ill) on urban poverty. Maybe he would have dreamed of the day when we treated the international terrorism that he did not know about as a law enforcement problem and not as the equivalent of war. But that's not why we celebrate King Day.

And it is that one concept; that commitment to equality before the law that drew four Presidents to Coretta Scott King's funeral. It was appropriate for them - and appropriate for us - to honor the fact that, whatever else we disagree on, we now do agree on that one principle. It would have been appropriate to put politics aside. It would have been appropriate to resist squandering the moral capital built up around that principle on the political differences of the day.

But that didn't happen. Rev. Joseph Lowery trotted out the multi-discredited "Bush lied about WMDs" trope and suggested that liberating Iraq from a murderous dictator was like genocide. He then suggested that because, I guess, the President could have called for increasing social spending even more than he has, he is "turning a blind eye" toward the poor. We can disagree all day about Iraq and poverty policy, but that's all just silly.

The increasingly execrable Jimmy Carter then implied that the complicated legal wrangle over NSA eavesdropping undertaken to prevent foreign terrorist attacks was like spying on Martin Luther King for political gain. I concede that there are serious issues around the NSA program but it is a world away from what Carter was referring to. He pulled out the now largely discredited set of racial myths about Katrina. As President Carter's ineffectuality blunted his sanctimony. Now that he is responsible for nothing, he has become insufferable.

Perhaps obeisance to this week's lefty shibboleths is the equivalent of forcing a monarch to submit to the rule of law. But I can't see it.

Free the Red Raiders

I think there is an irony in the Indian-themed mascot controversy that is largely unremarked upon. It seems to me that these nicknames, at the time they were adopted, reflected a certain degree of respect. The MJS editorial board and liberal blogger Carrie Lynch seem distressed that the name "Red Raiders", for example, connotes "an element of bellicosity" and is "predatory" or "hostile." The unstated assumption is that this is derogatory.

Maybe so, but I don't know that it was intended to be. When it comes to competitive sports, the connotation of bellicosity is generally regarded as a good thing. My son graduated from Homestead High School whose teams are known as the Highlanders. When you enter the school's campus there is a statue of a Scottish warrior with a very big sword. I do not think the message that this intends to send is an affirmation of the Scottish Enlightenment with its commitment to reasoned discourse and tolerance. Think Braveheart, not David Hume. I am half Scots-Irish. I suppose that I could complain that this does not reflect the true role of Scotsmen in the world, but I would be manufacturing offense.

Indian-themed nicknames, it seems to me, were largely adopted because those who chose them wanted to invoke a certain image of the nobility and bravery which they found expressed in the mythic Native American warrior. You can argue that this myth is inaccurate or that it is not one that today's Native Americans wish to see propagated, but it wasn't a sign of disrespect.

I don't have a huge problem with removing Native American imagery that bothers people today. But once you get rid of images like Tommy Raider and Willie Wampum, names like Red Raiders and Warriors are pretty generic. To demand that they be eliminated because they once were associated with an image that we have now decided was inappropriate is both unnecessary and revealing. It seems rooted more in the desire of those demanding the change to show their supposed moral rectitude than it is the need to remove any remaining offense.

Cartoon Update

Andrew Stuttaford on The Corner draws our attention to the comments of Ayann Hirsi Ali, a Dutch MP, who is crticial of her own government's feckless response to the controversy over the Danish cartoons:

We have been flooded with opinions on how tasteless and tactless the cartoons are -- views emphasising that the cartoons only led to violence and discord. What good has come of the cartoons, so many wonder loudly? Well, publication of the cartoons confirmed that there is widespread fear among authors, filmmakers, cartoonists and journalists who wish to describe, analyse or criticise intolerant aspects of Islam all over Europe. It has also revealed the presence of a considerable minority in Europe who do not understand or will not accept the workings of liberal democracy. These people – many of whom hold European citizenship – have campaigned for censorship, for boycotts, for violence, and for new laws to ban ‘Islamophobia’. The cartoons revealed to the public eye that there are countries willing to violate diplomatic rules for political expediency. Evil governments like Saudi Arabia stage “grassroots” movements to boycott Danish milk and yoghurt, while they would mercilessly crash a grassroots movement fighting for the right to vote… I do not seek to offend religious sentiment, but I will not submit to tyranny. Demanding that people who do not accept Muhammad’s teachings should refrain from drawing him is not a request for respect but a demand for submission.”

Ali is a Somalian-born Dutch woman who fled to Holland to escape an arranged marriage. She wrote the script for Submission, a film critical of treatment of Muslim women. This is the movie that cost filmaker Theo Van Gogh his life.

Shark and Shepherd on Dead Tree

My latest MJS column is in this morning's paper.

McBride on the Air

Since I have been out sick (translation: trying to work at home while barking like a two-pack-a-day seal), I got to hear that Jessica McBride will be taking over for Mark Reardon and hosting a talk show on TMJ from 8 -11. That's not surprising. (Karen From Mequon: I called it first.) Good for her.

What I hope (and which, based on her comments this morning, there is every reason to expect) is that she will contribute a distinctive voice to conservative talk radio. The emphasis on the backstory in what she does makes her take interesting.

It'll be interesting to see how that plays out on (later) night radio. My sense is that it might work well because, I assume, there are fewer casual listeners who have the radio on while working or getting in and out of the car.

On the other hand, as a media critic, I'm a pretty good lawyer. (KFM: I'll say!)

Got Live If You Want It

The Stones are apparently upset that ABC and the NFL censored the, please excuse the phrase, "money line" from the song Start Me Up in which Jagger sings of his interlocutor's extraordinary capacity to elicit a sexual response from someone who is, well, deceased.

I understand that this line may have somewhat more, I don't know, punch for the boys than it did when it was first written, but I can't say that I missed it.

The Rough Beast Slouches Toward Us

The Rapture is nigh! Be afraid! Be very afraid.

Thought Experiment No. 2

A while back, I wondered if those who claim that accountability is the issue surrounding lifting of the cap on school choice would agree to enhanced funding of choice schools in exchange for compulsory testing and accreditation. I had no takers. In fairness, the idea was expensive.

So here's a more modest idea.

The Weekly Standard reports on a recent study by the New Teachers Project showing that in a one year study of four large urban school districts, only four teachers out of 70000 were terminated for poor performance.

This suggests one of three possibilities. First, human resources managers at our nation's urban school districts ought to quit their day jobs and publish business books explaining how they manage to hire at a success rate approximating 99.99428%. I don't know how they do it and what to call the book, maybe I Feel It in My Fingers; I Feel it in My Toes.

The other possibiility is that teachers are pretty much fungible and don't make much difference, so why bother firing them? Can't imagine that the unions will buy into that. Even I don't want to think that is the case.

The third is that we have an Accountability Gap of Nixonian proportions.

So here's my new proposal to break the cap logjam. Let's move to standardized testing and accreditation for choice schools. But let's not, at the same time, tie the hands of public school administrators in striving for their own accountability. Let's welcome public school teachers back into the real world. Let's make them "at-will" employees. Let's do it for the children.

Any takers?

We Are Made of Sterner Stuff

We Baby Boomers are tougher than I thought. Millions and millions of us are about to bankrupt the social security and medicare systems and to be a burden on working people for the next 30 to 40 years. And yet ... we were transported as children, not only without booster seats but without car seats! We hung out on jungle gyms with jagged metal edges - suspended over concrete. Without supervision. I never saw a bike helmet until I was in my 20s.

And yet we survived. And survived in numbers sufficient to throw the whole darn country into insolvency.

Ah, that was when giants roamed the earth.

I jest cain't quit you.

From Richard Aleva in Commonweal:

Miraculously, you discover that you can take your heart out of your chest without dying. Well, perhaps you’re not really alive but you walk, talk, get business done, and nobody suspects that you are actually an ambulatory corpse. You keep your still throbbing heart in a little box in the attic. You go up to visit it from time to time. In the attic’s darkness you breathe on your heart, whisper tributes to it, caress it with your eyes. Of course you must keep your visits furtive and few lest anybody suspect how weird you are.

Quick and without looking. Is this a review of Brokeback Mountain or an essay on Doyle's fundraising?

Jimmah: You Will Respect Mah Authoritah

Former President Jimmy Carter manages to show his increasing lack of gravitas twice in less than twenty-four hours. First, he enters the fray on the NSA surveillance program by announcing it is illegal. He knows because he signed the FISA Act into law at the same time that he and Sen. Frank Church were gutting the rest of our intelligence-gathering abilities.

Guess what? I don't know whether the NSA surveillance program is illegal and neither does the increaingly sanctimonious Carter. Part of the problem is that no one knows exactly what the program entails because, everyone agrees, the precise nature of the program needs to remain classified. The repeated claim that the administration "could have" obtained warrants after the fact might be true, but no one who is making it really knows if that's the case.

The legality of the NSA program would make a great law school exam hypothetical. The Constitution probably permits it, but you could make an argument the other way. The language of the FISA Act probably forbids it, but there is some wiggle room (depending on precisely what they are doing), and, after the Supreme Court's decision in Hamdi in which a majority of the Court found that the Authorization to Use Necessary Military Force after 9/11 authorized detention of American citizens who were enemy combatants, it is just not clear that Congress didn't grant the President this authority under the AUMF.

And even if the FISA act forbids it, there is a neat question as to wheher Congress has the authority to place such a restriction on the President's exercise of his power as Commander-in-Chief.

John McAdams links to some useful background material.

Then Carter participates in turning Coretta Scott King's funeral into a political rally. Very Nobel Laureate-like.

Having presided over one of the worst administrations in American history, you'd think he'd have the decency to slink off into anonymity. Play golf. Build houses. But please don't continue to bore us. Over twenty-five years ago, we told you that we don't care.

Blame Me Not !

Carter's comments criticizing Bush on the NSA program came in connection with his son Jack's campaign for Senate. Now there's a candidacy witn nostalgia appeal. I am certain the the voters of Nevada want nothing less than to bring back that brief shining moment that was the Carter administration.

I know I shouldn't but I am beyond help. With apologies to Rogers and Hammerstein and to the tune of "Camelot," I offer.

BLAME ME NOT


JIMMY:

(behind his desk in the Oval office; wearing a cheesy sweater.)

It's true! It's true! I have made perfectly clear.
That my own reign was perfect all the year.

(he wanders toward the camera)

A law was made a distant moon ago here:
To spy on enemies, a warrant must be got
This may result in occasional ter - ror
But Blame Me Not

(we now see Carter waiting in a gas line in a Ford Pinto)

I told you that you must learn to love stagflation
And try hard to want less than what you’ve got.
It may be that gas was ration’d
But Blame Me Not
Blame Me Not! Blame Me Not!
Jobs fell while prices raised,
But Blame Me Not, Blame Me Not
The fault was your malaise.

(we find Jimmy amidst the wreckage of helicopters in the Iranian desert)

In freeing hostages, it is true that I was clueless
In fending off wild rabbits, I showed fear.
But I reaped what I had wrought
And Reagan cleaned my clock

(Jimmy, Roz, Fritz and Cy Vance join arms on the front porch of the Plains General Store and sing together)

That lead to happily-ever-aftering
So Bla -- aaa ---aame Me Not

More on the Jihadist's Veto

Dad29 and Sean from the American Mind take issue with my criticism of the Vatican's claim that there is no good reason to offend religious sensibilities.

I agree that there is not reason to give gratuitous offense, but I can't see how someone else's religious sensibilities can be the limit of my right of free speech. For example, everyone rushes to agree that these cartoons are "offensive." Why is that? They seem to offend by 1)depicting Mohammed at all and 2)suggesting a connection between Islam and violence. I agree that the second is offensive, but it is hardly the cartoonists who have claimed that connection, a significant portion of the Muslim world has not only claimed it, but celebrated it.

The first is a requirement peculiar to Islam and I guess I wouldn't go out of my way to transgress it. But if speech must respect the peculiar religious sensibilities of any and all religious groups, there is no limit. As far as I know, Theo Van Gogh did not depict Mohammed in making a film criticizing the treatment of women in Islam. But he did offend the "religious sensibilities of believers" and paid with his life. Did he ask for it?


Dad says offense will never do any good. I agree that there is a level of provocation that is best avoided, but criticism of a religious tradition can do a lot of good. When we discussed this issue last night in Law & Theology, my theologian partner, the Rev. Dr. Joe Pagano, made a rather powerful argument that even offensive critiques of religion that were ultimately off the mark may have theological value. In particular, he argued that the Marxist and Freudian critiques of religion as an opiate and projection, respectively, while wrong, forced theologians to wrestle with how faith can be misused in this way. They were offensive. They were wrong. But they lead to useful reexamination.

The Vatican on free speech

Dad29 posts the Vatican's comment in light of the hysteria in the Muslim world over the Danish cartoons. I'll have a column addressing this in the MJS, but, while I have the greatest respect for the Vatican, this statement seems unhelpful. It is wrong to say that the freedom of thought and expression cannot imply the right to offend the sensibilities of religious believers.

I acknowledge that there is a point at which something becomes so offensive that it has little chance of acting as communication as opposed to provocation. But it is often that with offends us that shakes us sufficiently unsettled to examine what may be our mistaken presuppositions. My sense is that southern Christians once found ti quite offensive to be confronted with the notion that segregation was inconsistent with the witness of Jesus Christ. But it was and they eventually had to accept that.

If Muslims are offended by the image of Muhammed with a turban fashioned into a bomb, it may do well for them to ask why someone else felt it necessary to depict the Prophet in that way. Maybe they will conclude that there is no justification to connect Islam with terror. Maybe they won't.

To restrict speech to that which will be accepted by the least tolerant among us makes the least tolerant the arbiters of what can be said. And encourages others to be just as vigilant on what they find offensive.