Religious Freedom Under Attack

A week or two ago, we briefly discussed the future of religious freedom in the Supreme Court, with Mark posing a question about how the Court would deal with laws against polygamy, if such a case came up. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the issue is the existence and scope of the “ministerial exception” recognized by all federal courts of appeal to protect religious organizations from employment-related lawsuits. The Obama Administration has taken the position in its brief filed on behalf of the EEOC (see Brief of Federal Respondents at the link) that there is no ministerial exception under the Constitution, and, as a fall-back position, that if there is such an exception it should be limited to persons “who perform exclusively religious functions” (emphasis added).

This case and the position of the Obama Administration may have sweeping significance to the future religious freedom. Who, if anyone, has “exclusively” religious functions? As some have pointed out, the Pope probably does not even meet this test. If there is no ministerial exception at all, then haven’t we opened the floodgates to lawsuits against churches and other religious organizations, and forever entangled the courts in their affairs? And, stepping back, consider how the ever-expanding reach and proliferation of federal regulation itself creates these conflicts and entanglements. The more the government regulates, the more conflicts with religious freedom it creates.

81 Responses

  1. Thanks for posting this. I meant to link to a WSJ article the other day about about the Catholic bishops and the health care rules. See Catholic Groups Fight New Health RulesThis touches on my earlier post. They got in bed with big government, now they're surprised they got screwed?

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  2. QB, Doug Laycock was at UT from the 80s until so recently that I did not know he was now at UVA.The standard here has been different in the various circuits. Here in the 5th Circuit, I can obtain SJ for, say, a synagogue, that can point to any duty of an employee that could be religious, educational, community charitable, or organizational. In other words, I could pretty much blowout any Plaintiff except a janitor fired because he was too black.Some circuits have allowed more cases than that to proceed. No Circuit will let a minister, priest, or rabbi maintain a Title 7 case. In other words, if a black minister is fired because his parish doesn't want a black minister because he is black that minister can prove he was discriminated against but no federal court will listen to him.I give those examples because as the law stands this is a conflict between First Amendment protections of both free exercise and no establishment of religion on the one hand and Fourteenth Amendment approved statutes guaranteeing civil rights in employment.I favor the line drawn by USCA 5 because I am used to it and it is a bright line. EEOC would move to a case-by-case analysis of whether the employee's function was sufficiently religious, thus threatening in each case to establish a jury's own view of the mission of the church or mosque.The Supremes have said that laws of general application usually apply to churches; thus churches cannot commit crimes, for example. So there is room for a really bloody debate here and I do not know that it will split liberal / conservative. Recall that there are three Jews and 6 Catholics on this Court and no Protestants. Jews and Catholics were more fiercely protective of the First Amendment, historically, as it applies to organized religion, than were Protestants.If Laycock wins a narrow holding victory that incorporates a standard like that in the 5th Circuit I will not be surprised, and I think 9-0 is possible, with enough discussion among the Justices.

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  3. SJ = Summary Judgment, not Society of Jesus.

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  4. Sorry guys, none of that really clarifies the legal arguments for me. How is the connection made between say, qb's example of polygamy and civil rights violations? Are you saying that polygamy is a religious right that deserves protection under the First? Or are you saying that it's a slippery slope protecting civil rights as the expense of the First?

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  5. Mark, just a couple of quick notes.No disagreement that courts have applied different standards to determine what is an exception and what isn't, and you are more in touch with that body of law than I am. One of the points of most interest is what seems to be the sweeping position taken by DOJ/EEOC, although it might be interesting to explore the difference between its "no exception" approach and the current state of the law.As to your last comment, I don't know that it matters, since the Court arguably has no representatives of this group (Thomas perhaps?), but you would see a very different attitude among evangelical and charismatic (or what liberals are prone to lump all together as "fundamentalist") Protestants than among more "mainline" Protestants.

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  6. The practical problem is that religious freedom cannot be a blanket excuse to violate any and all laws. At what point do you say polygamy is a protected religious practice, but marrying and deflowering 11 year old girls is not? Religious freedom cannot endlessly flout secular law. A long and storied religious practice of human sacrifice should still be murder in a court of law. No person should be above the law.

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  7. lms,It is a complex and deep set of issues, so don't be dismayed if it looks confusing. We can't really do it very much justice here, but, let's try a couple of things.As to the connection between polygamy and civil rights, they are both examples of what we could broadly call laws of general application that are passed to further public policies. In our recent discussion of stare decisis (following precedent), Mark posed a question about polygamy and how I thought the Court would treat the 19th century case that first dealt with it. The question is always, hey, what if my religion approves or requires polygamy; how can your Godless anti-polygamy law apply to me? I said that I think the Court would likely look to more recent precedents like the Smith case that held that narcotics laws can be applied despite one's religion, in which peyote use is a religious practice. In that case the court held that such a law of general application could be applied without violating the First Amendment. Not very satisfying reasoning for most people, ultimately, whether or not one agrees with the result. I don't think that polygamy should be treated as a religious right, but that is the argument that is made.The application of employment and discrimination laws to religious organizations can raise similar issues, although there are differences. For example, in these cases courts are asked to hold religious organizations themeselves liable for allegedly unlawful employment practices. The current case is an ADA case — a teacher in a parochial school who was ultimately discharged because she was diagnosed with narcolepsy (if I have the basic facts right). Can the Catholic Church be sued for not appointing or hiring women to certain positions? What about cities or states that pass gay rights laws? Can churches be sued for not hiring gays? The position taken by the Obama Admin seems to suggest that, absent a religous exemption expressly included in a statute, the answers to these kinds of questions might be, yes, these churches could be sued.They are not easy issues to resolve. This is why I made the point I did at the end. One of the results of ever-spreading laws and regulations is the proliferation of these conflicts. To some people, this is not a problem. I find that how people feel about organized religion tends to correlate with how they about that proposition.

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  8. Kevin, To bring it to a fine and controversial point, should a church whose doctrine condemns homosexuality be subject to liability under a law forbidding discrimination on that basis? What forms of discrimination? Hiring teachers in its religious school? Marrying? Hiring non-religious staff?There have been some lawsuits against photographers for refusing to do gay weddings. What about those? Religious freedom yea or nay?Should the Catholic Church be allowed to "discriminate" against women?How do we decide which laws trump religious claims? Ones we feel strongly about? How strongly? Ones designed to protect other people? We know it when we see it?

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  9. I guess the question is when does religion trump fair hiring practices then? As someone who is not a member of a particular religious sect or dogma, but a believer nonetheless, I personally view these issues in a more humanitarian light. I'm not saying organized religion is not humanitarian, I'm just saying that I don't particularly believe organized religion should be exempt from laws that place civil rights at the forefront. I can see from your examples how tricky and opinion oriented the discussion can become based upon both religious and secular views. In my simple common sense, non-legal opinion, if we have established, through legal means, equal rights for say women or gays then that should stand above discrimination based upon religious doctrine. Easy peasy, lol. Seriously though, some of this is driven by an obvious desire to support religious freedom, which I think most Americans endorse, and the rights of citizens who have been historically discriminated against. Since polygamy is not, as far as I know, a recognized legal position, it's probably not a very good example. I think the real conundrum is the religious objection to abortion which seems to be a different issue than a civil right. And of course the Catholic Church and other religious objections conflict with a legal right, which gets very complicated.The case of narcolepsy and the teacher seems to reek more of the rights of people (not women) with disabilities. Are there disabilities that interfere with job performance, yes, I think that's should be obvious. But for most jobs a disabled person is just as capable as anyone else which is the right that should be protected. I understand that not everything is that simple though.

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  10. "There have been some lawsuits against photographers for refusing to do gay weddings. "What was the outcome? What if I just decided I don't like that kind of thing? If I'm a contractor, do I have to take a job I just don't want to do? I guess it matters why I don't want to do it. If I don't want to do it because I don't like gay weddings, or interracial couples, it's going to be seen differently than if I just want to drive an extra hour to another town, because I don't like driving, or I won't fly out of town for a wedding because I don't like to fly, or . . . A lot of thought crime in these kinds of situations.

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  11. The case of the photographer not wanting to photograph a gay wedding is just silly IMO. Common sense would tell the photographer to simply say "I'm busy that day" rather than make an issue of homosexuality.We have a rental house and no longer rent to people with children. Does that mean I don't love children, no, we made the decision based on our experiences over the last 20+ years and the preservation of our investment. Do I advertise that fact, no, do I choose someone without children, yes. Am I a bad person because of it, maybe, but I'm going to do it anyway and just not advertise that I'm doing it. I doubt anyone would be able to bring a legal case against me for it. Prove it, without reading my confession here.

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  12. "Should the Catholic Church be allowed to "discriminate" against women?"I suppose if movies get to cast specific roles for women and men, then the Catholic church could, too. There are, after all, plenty of denominations where female priests/ministers are embraced. A women's support group probably shouldn't be forced to admit men.

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  13. lms,The conflict between your position and mine on the gay rights question is an example of why imo the country is in the midst of an intractable and ultimately unsustainable cultural, religious, and constitutional conflict. That position means that the doctrine of the religious faith not only of a large segment of the American public today but at the heart of Western Civilization itself would be unlawful and not protected by the First Amendment.This is part of why I find so surreal claims by the left that conservatism is the radical force within society today. We aren't the ones trying to declare the centuries-old faith doctrines and societal norms of our civilization radical and make them illegal and without constitutional protection. This also goes to why we view the Obama Administration and D Party with such alarm.

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  14. OK, to throw a couple of tires on this fire (interesting post, BTW, qb): you could use the same reasoning in the opposite direction and come up with the title of "Freedom of Choice Under Attack" for this post (not this case that you're writing about, but what you're arguing is the attack). If you think about what you're saying about regulations and conflicts with personal freedoms, this is precisely what we've argued about the erosion of abortion rights in this country.I'm not a lawyer, so be kind in slapping me down, but it seems to me like the logic is the same.Which is why I agree with you that regulations always have unintended consequences, and someone's dog is always going to get bit in the fight.

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  15. I think you're hanging a lot off of a technical change, QB. I recognize that upon such technical changes, much can hang. Yet… your interpretation of the administration's action would have the tax exempt status of the Roman Catholic Church revoked. Evidence, please?The reduction to absurdity lies in claiming that the Pope wouldn't be considered an exclusively religious post. Presumably, the pontiff eats, excretes, and sleeps. That doesn't mean that he is not an exclusively religious figure.As you have a good legal mind, how about some practical implications of this change? When you propose that the Pope isn't an exclusively religious figure, you pretty much lose me.Furthermore, you talk about increasing regulation. As far as I know, we're talking about anti-discrimination laws that were passed 50 years ago. You're weaving a discordant thread this into a broader narrative. It doesn't fit.BB

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  16. lms,Re photographers and rentals.It might seem silly, but the cases do get filed. And sometimes there seems little doubt that activists seek out the cases, i.e., seek out those they think will object. There is no attitude of live and let live in this movement. It is out to suppress orthodox morality and oppress those who hold to it. It is ironically intolerant.I also don't think we should expect people to have to make excuses and conceal their convictions. Our society has gone wildly off track when people are suddenly expected to "justify" their position on this. The reality is that you could be sued, too. You don't have to advertise your "bias" to be sued. Once you are sued, you have to deal with it, whether or not the lawsuit has merit. That case, however, raises much less in the way of First Amendment issues.

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  17. "It is ironically intolerant."Intolerance of intolerance is the only acceptable for of intolerance. Yet what if you are intolerant of intolerance of intolerance? At that point, I think you'll collapse into yourself. BB: "When you propose that the Pope isn't an exclusively religious figure, you pretty much lose me."It's well known the Pope is also expected to do light clerical work, and be familiar with Excel and Microsoft Word.

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  18. Michi,Yes, at some level, these sorts of disputes all involve demands of law versus claims of liberty or freedom. I would argue that there are several important differences between cases like this and the abortion question. One is that the former implicates at least two express provisions of the Constitution (Free Exercise and Establishment), while abortion does not. This "privacy" right was found in "emanations from penumbras" of the Constitution and essentially reduces to a tautology: there is a zone of privacy inside which people can do whatever they want. How do we know what is within that zone? We [judges] know it when we see it.Now, choice proponents often argue that regulation of abortion is solely based on religious belief and thus violates the Establishment Clause. This in my view is a poor argument without a sound basis. But in any event the abortion argument does not implicate Free Exercise in the same way, unless someone argues, my religion or lack thereof does not prohibit abortion and therefore allows me to have one, but this is not really a meaningful Free Exercise argument.

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  19. Well, since I've been alive there have been frivolous law suits, it's the price we pay to bring attention to the non-frivolous.It appears to me we're getting to the crux of the matter, homosexuality. The activists are there and loud for a reason. Without activists attitudes don't change and progress doesn't happen. I've been an activist in my day on certain issues, and the idea is to take the extreme view in order to whittle away at the policy or discrimination you're trying to undo. It's usually with the hope of getting something you want, not all of it.I've never understood the religious objection to homosexuality though so I'd guess we're far apart on the matter. As far as I know adulterers aren't endorsed by the church either and there's much more choice in that decision than sexual preference. Churches are normally known for opening their doors to the weak (not that I consider homosexuality a weakness), not closing them.

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  20. FB,I don't see where I said anything about the Catholic Church's tax exemption.Most observers consider this one of the most important religious freedom cases in decades. I don't think I'm alone in thinking it is important, and that the Admin's position has potentially sweeping implications. No one really knows what "performs exclusively religious functions" would mean in practice. But the admin is advocating this test as opposed to a more lenient one if the Court upholds the existence of an exception at all. I doubt very much that any religious figure up to and including the Pope would pass that test if it were literally applied. I know many pastors and other church personnel and staff very well and am very familiar with what they do. They all perform nonreligious functions, like overseeing property maintenance, website design, insurance procurement, financial management, you name it.I think I've suggested some practical implications above. But the basic and most direct one would be the opportunity for many more people to sue religious organizations without the 1st Am as an obstacle. As for growth of laws and regulations, it hardly seems controversial to me that this has been the trend since the New Deal. If you doubt it, take a look at comparisons of the CFR and USC now versus 1930. Or 1960 or 70. This current case concerns the ADA, which isn't close to 50 years old. It has happened and continues to happen. It seems equally uncontroversial to me that the more the government regulates employment and societal relations in general, the more conflicts arise. That doesn't mean I oppose all laws, but we ought to be cognizant of the overall impact.Many educated people know that the Madisonian argument against a Bill of Rights was that it was superfluous in view of the new government's limited powers. How could it infringe our rights given no power to do so? He did not foresee the New Deal and the 20th Century's shedding of constitutional constraints.

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  21. Kevin,There is, however, a major flaw in your argument, at the very beginning, even taking it at face value. The gay rights movement is not a movement against intolerance. It is a movement demanding approval, endorsement, even participation by others like photographers. Refusing to photograph or cater a same-sex wedding, or to hire an avowed homosexual to teach in a religious school, is not an act of intolerance.

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  22. lms,I have to go now, but keep in mind that conflicts like this generally arise when laws are passed to create legally protected categories. Adultery isn't one of those, so if a religious school fired someone for adultery, I don't suppose there would be any basis for a lawsuit. The movement to enact gay rights laws presents a different prospect.Nor do I think this has anything to do with opinions about whether and how churches should be open to the weak or sinners. It is about jobs, contracts and the like. Churches can not hire drug users, wife beaters, adulterers, regardless of their openness to them as people who need help.

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  23. "The gay rights movement is not a movement against intolerance."Why isn't it? At least a movement against perceived intolerance? Granting that some folks the movement might just be there for reasons not directly related to the professed goals of the movement, would the gay rights movement be (at least from the perspective of those folks) a movement against intolerance?"It is a movement demanding approval, endorsement, even participation by others like photographers."The argument being, I guess, that refusing to participate isn't intolerance? I mean, it's still discrimination (but, of course, discrimination would include only admitted women to a women's group). "Refusing to photograph or cater a same-sex wedding, or to hire an avowed homosexual to teach in a religious school, is not an act of intolerance."I suppose with a very narrow definition of intolerance (legal definition?) that might make sense. I don't think the general usage of the term would correlate–I think most people would consider such practices intolerant of homosexuality, even if they subscribed to the notion that you should be intolerant. In any case, which argument are you referring to? I stand by my assertion that the pope is required to do light clerical work as part of the position.

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  24. "Churches can not hire drug users, wife beaters, adulterers, regardless of their openness to them as people who need help."And so they shouldn't hire homosexuals because they do have a legal right to equal status under the law? If it doesn't smack of hypocrisy to you which was my point then I don't know what to say.

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  25. And also, isn't there both a legal and moral inconsistency within the Catholic Church in regards to their treatment of pedophiles? Why should we now endorse their view or religious exception to a protected class of people under the law? I may not understand, and I freely admit to it, the legal ramifications of gay rights, but I think I can still claim a moral consistency that differs with the church.

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  26. Since qb had to run to do some real work, I've gone ahead and thrown up a new post in a lighter vein.Good discussion, and no knives got thrown! Mass hysteria.

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  27. All of you lay people understand the legal complexity, from your comments.I am going to add a layer of practical complexity about the administration of justice. QB and I do not like the EEOC's position in this case because it will allow a jury to decide whether a church has made a religious decision or a secular one in the context of an employment dispute. I think it is better policy to tell prospective employees of a church that their employment law remedies are sharply limited, on the front end. Without a bright line, courts will work the matter out over years, until they create one[!], because the federal judges hate being employment arbitrators and there is not enough manpower to do any employment litigation other than organized labor [union/CBA] disputes in the federal or state systems. The latter is true because of the reliance on arbitration and specialized administrative law judges. We will never have such a network for individual employment cases. Understand that any case where the stakes are less than $300K and most cases where the stakes are less than $1M are simply not worth bringing in Fed Ct. Individual civil rights cases are important to the maintenance of civil rights, so we must keep the door open to them. With bright lines,weak cases are quickly winnowed out, but strong and strong-but-complex cases have room to be heard.As to polygamy, here is a case to consider. Nigerian Muslim biochemistry professor has two wives, legally, and according to his religion, in Nigeria. Suppose he becomes an American citizen. Can he bring his wives over to live with him? In the real case, that prof is now teaching in Toronto, both wives are with him, and I do not know how Canada treats it, for any purposes.Polygamy, I hasten to add, raises free exercise of religion issues for many people who would like to come here from around the world. There are more Muslims than Catholics.There will be court cases. Our Supremes ruled in 1878 that polygamy could be prohibited because it was largely an African and Asian practice and we were European people. A weak case, constitutionally.We have suspended laws of general application for the Indian tribes, btw. Their treaties trump statutes that are not constitutionally required.The current case would be stronger for the employee if she were terminated for her race rather than for retaliation on the basis of her ADA claim. The extension of the enabling statutes for the equal protection clause to the disabled is far less ironclad than the extension to the former slaves. We have different requirements for the defense of these cases, accordingly.In overly simplistic terms, we have a "strict scrutiny" standard for race, an "intermediate standard" for many cases, and a "rational basis" standard for most categories.Examples of rational basis discrimination:1] women live longer than men so they get lower life insurance premiums, they get sick more often so they get higher health premiums; and 2] Hooters can hire young women with long legs and big tits who are under 40.BUT: blacks have shorter life expectancies and cannot be made to pay higher life insurance premiums by the same company that insures whites, and black women with long legs and big tits who are under 40 cannot be fired for being black or overlooked in the hiring process.Strict scrutiny on race. Why? Because it is explicit in the 14th Amendment.

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  28. MarkThat makes it a little more clear regarding the legal questions. But who will define the bright line if not the courts? Thanks for the new post michi

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  29. QB, Mark – Thanks for the responses. A technical question. Would a ministerial exception be respecting an establishment of religion?BB

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  30. BB, I don't think so. An exemption of some sort allows the free exercise of religion because it allows Muslims [say] to hire only Muslims to teach Muslim parochial schools. But if the government says that the Muslims must hire from the general population of certified teachers without discriminating, that is government establishing religion by dictating who will transmit it.Or, if these same Muslims fire the Jewish teacher because she is not sympathetic to Halal but wants to teach Kashruth, because it is similar to Halal but more familiar to her, a jury in Brooklyn might object to her firing and one in Dearborn might not.The real cases around here occurred when the current Archbishop decided the previous one was too lax because he allowed the local Catholic schools to hire non-Catholics. Under 5th Circuit rules the teachers had no case, although one of the parochial schools actually rebelled and there was a big hooha within the church itself.

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  31. "2] Hooters can hire young women with long legs and big tits who are under 40."Thank goodness for that! Sanity still reigns in our legal system. At least . . . for now.

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  32. Yeah, and I didn't want to work at Hooters anyway.

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  33. Mark, we're having rain today and tomorrow. I'm trying to aim is a little more south than usual.

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  34. LMS, thanks. Last night my twin granddaughters, age 2.67, were watching Bambi on dvd for the first time. when the thunderstorm scene came, Rebecca looked up solemnly and said "we need rain."Rosanne, my wife, thinks Becca is brilliant, but I think she has just heard every adult in her life at home and in preschool say those three words, again and again, and she made the connection.

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  35. Mark:BUT: blacks have shorter life expectancies and cannot be made to pay higher life insurance premiums by the same company that insures whites, and black women with long legs and big tits who are under 40 cannot be fired for being black or overlooked in the hiring process. Strict scrutiny on race. Why? Because it is explicit in the 14th Amendment. I don't think it is even implicit, much less explicit. The 14th Amendment explicitly prohibits the government from discriminating by either making laws or by refusing to enforce laws. It doesn't say or imply anything about how Hooters, an insurance company, or any other private entity must run its affairs.On the larger picture, the trouble here is, I think, a failure to properly understand the meaning of "rights", resulting in the fact that the government has ceased being strictly a protector of freedom and has become instead the protector of preferred outcomes, even if that means denying freedom. The only way that rights can be said to inhere in all people equally, a notion upon which the nation was founded, is if we understand "rights" to mean freedom of action absent coercion.The rights of gays to be employed and the right of Catholics to not employ gays are not in conflict and are perfectly reconcilable, provided that we understand rights to mean freedom of action in the absence of coercion. That is to say, Catholics have a right not to hire gays, which in itself involves no coercion, but cannot possibly have a right to prevent gays from being hired by a willing employer, because in such a case coercion must be used. Likewise, gays certainly have a right to be employed by a willing employer, which itself involves no coercion, but they cannot possibly have a right to force an unwilling employer to hire them, because in such a case coercion must be used.When the government becomes an initiator of coercion ("you cannot legally refuse to hire person X" or "you cannot legally hire person X") in the name of protecting "rights", it has established an incoherent notion of rights that is simply irreconcilable with the notion that all men are created equal and endowed by their creator with certain unalienable rights. Hence, the constant stream of "rights" that seem to conflict with each other. Rights, coherently understood, cannot be said to be in conflict.

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  36. Scott, this is actually simple.1] Court action is governmental action.2 The 14th Amendment is specifically not self effectuating: "5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."Congress chose to enforce the equal protection clause, which says no state may deny equal protection of the laws, with the Civil Rights Acts of 1866 and then with Title 7 in the Twentieth Century. The enforcement of the equal protection clause denies state courts the right to enforce unequal treatment among parties based on race. ["…nor deny to any person within its jurisdiction the equal protection of the laws…"].It is senseless to argue that black litigants can be denied the same contractual rights as white litigants by a court system that cannot enforce such a denial. Otherwise, the courts must be viewed as private and not governmental.

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  37. Rights, coherently understood, cannot be said to be in conflict.In a Utopian fantasy maybe this would be true, but the history of discrimination here and across the world would say otherwise. Unfortunately, most people don't listen to their better angels.

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  38. Mark:Maybe I misunderstand you, but if a state allowed an insurance company to charge premiums based on life expectancy, and blacks, having a lower life expectancy, ended up paying higher premiums, how have they not been afforded equal protection? It is senseless to argue that black litigants can be denied the same contractual rights as white litigants by a court system that cannot enforce such a denial.Perhaps I am being dense, but I don't understand this, or what it has to do with my argument about what the 14th amendment says.

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  39. lms:In a Utopian fantasy maybe this would be true…No, the meanings of words don't change based on the relative utopianism of society. You might argue that it is sometimes necessary for government to fail to protect or even to violate the rights of citizens in order to achieve some perceived greater good, or to right some historical wrong. But the nature of what a right is doesn't change simply because we don't live in a utopia.

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  40. But the nature of what a right is doesn't change simply because we don't live in a utopia. I think it does though scott if you or someone else is advocating a position such as this:Likewise, gays certainly have a right to be employed by a willing employer, which itself involves no coercion, but they cannot possibly have a right to force an unwilling employer to hire them, because in such a case coercion must be used.The point being, all things being otherwise equal, gays have the same "right" to employment as the rest of us. It sounds like you're advocating for the path of least resistance in order to be true to a basic tenet of freedom of action and not coercion. That is not the reality now, nor has it ever been, nor will it ever be. Aren't laws designed to protect the interests of both parties fairly? Regrettably, it doesn't always work out that way and there are occasionally unintended consequences. But it is never as simple as you've described IMO.

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  41. "gays have the same "right" to employment as the rest of us"I think Scott is arguing that we have no such right, gay, straight or otherwise. At least, I don't believe I have a "right" or "entitlement" to employment.

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  42. Okay, but if two people are applying for one job and presumably one will be hired, all things being equal if the decision is based on sexual orientation, whose rights are being infringed upon? I don't mean an inherent right in a sense of humanity, but a right in the historical context.

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  43. NoVA:I think Scott is arguing that we have no such right, gay, straight or otherwise.Precisely.lms:Okay, but if two people are applying for one job and presumably one will be hired, all things being equal if the decision is based on sexual orientation, whose rights are being infringed upon.?Neither. That is precisely my point. If the notion that we all have the same rights is to be meaningful, the term must be understood in such a way that rights do not conflict. It cannot be the case that doing X violates person A's rights, but doing non-X violates person B's rights. If such is the case, what in the world can be meant by the term "right"?

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  44. lms:We can find an action (or, more accurately, a thought) to be odious without it being a rights violation, don't you agree?

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  45. lms:Aren't laws designed to protect the interests of both parties fairly?Laws can be designed for any number of reasons, good or bad. But in my mind the best way for a law can protect the interests of both parties fairly is to protect each from the initiation of coercion, leaving them free to act in their own best interest as they see it.

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  46. lms – as always, your questions deserve more time and attention that I can give them. I think this is a great example of the "positive" vs. "negative" aspect of rights and liberty and how we view the world around us. And I think this leads to some people being on AM and some on FM. A lot of criticism thrown my way is largely about results — "sure, that's great, but in the real world, that gay man needs a job and you'd let the company not hire him." If we're going to use power to determine what's fair in what's a private matter, that's a power that just begging to be abused. That said, i'm not doing to get that upset about anti-discrimiation laws. there are much bigger injustices to fry.

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  47. Scott:We can find an action (or, more accurately, a thought) to be odious without it being a rights violation, don't you agree?Finally–you've said something with which I agree 100%. I knew it would happen someday!!!

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  48. NoVA, I'm probably on XM, lol.Anti-discrimination laws, civil rights laws, the Disabilities Act, suffrage etc. etc. were all crafted to correct an injustice where the freedom fighter infringed upon the "rights" of others who were kept out of the labor force, voting booths, schools, management etc etc because the natural inclination of people is to surround themselves with people who look, act and believe the same as themselves. Whatever the Founding Fathers believed, this is a correction that we as a free society have made. It isn't always perfect but I believe it will always be better than the alternative. In an ideal world others would always be judged by their character, their accomplishments and their humanity, not so in the real world. When your freedom of action infringes upon another's freedom of action we are then forced to "coerce" a different outcome. That's where the debate is, not the definition of a right.And scott, in that limited sense the answer is yes.I'm out to take my paper work to the accountant, yikes.

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  49. Scott wrote:"Perhaps I am being dense, but I don't understand this, or what it has to do with my argument about what the 14th amendment says."Perhaps.Or maybe my explanation was not as clear to any reader as it was to the author.

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  50. NoVA:That said, i'm not doing to get that upset about anti-discrimiation laws. there are much bigger injustices to fry.Again, I definitely agree. But i'd prefer that we not add more to the pile. Mark:It's almost certainly me. But if you get a chance to explain it in a different way, that would be great. lms:More later tonight when I have more time to focus.

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  51. Kevin,I think your usage/definition of tolerance is dubious. Tolerance does not involve your personal approval, endorsement or participation. It involves only your not taking action against what you tolerate. Indeed, you woudn't need to tolerate what you approve and endorse and support.

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  52. lms,My point about hiring versus helping various kinds of sinners was simply to point out that I don't think that saying churches should be open to them has anything to do with whether churches should be required to hire them. And thus I don't see how the claim that churches should be open to homosexuals is an argument that they should be required to hire them despite the First Amendment.

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  53. Mark, I would disagree with certain points addressed to Scott, unless I have misunderstood you.We do have to distinguish for constitutional purposes between state action and private action, don't we, because the 14th Amendment in fact does not apply to the latter? Employment/discrimination is your area, but isn't it correct that it is the Commerce Clause and not EP that is the constitutional basis for Title VII's ban on private discrimination? The Court struck down the original civil rights act in the Civil Rights Cases.Also, I think there is a large difference between saying that the 14th gives Congress enforcement power (which it does) and saying it is not self-effectuating. The latter is not correct, given that the 14th does by its own terms ban state denial of equal protection. True, it is not self-effectuating, in the same sense that all laws are not, but no further action by Congress was needed to make state discrimination unconstitutional.So we have the 14th's EP clause applying to government and the 64 Act based on the Commerce Clause applying to (certain) private actors. Going to Scott's point, then, race is explicitly covered in Title VII of the 64 Act.On Scott's argument regarding the non-conflicting nature of rights properly understood, I largely agree, and this becomes an important debate under the 14th and some of the laws and policies ostensibly enacted to give it effect. I wrote a law school paper for a professor critiquing his own article on the supposed "one-way ratchet" nature of Congress' enforcement power, deriving from a case that held that Congress can expand but not contract "rights" under the 14th. This is quite a problematic notion, especially when it is used to defend government policies like affirmative action, which seem to define "rights" and their enforcement in ways that put John Doe's and Jane Smith's rights in conflict, effectively a zero-sum game. If the government enacts a policy that says John Doe has a right to preferential admission or hiring based on race, then Jane Smith's rights are contracted when she is excluded on this basis. I argued that this notion of rights and their enforcement was fundamentally incoherent. The prof didn't agree, of course, but liked the paper a lot.

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  54. Agreed that Title 7 was commerce clause based. However, for the period of my career, 42 sec. 1981 et. seq.[the original CRA] has been operative, and I would argue is the enforcement mechanism of the 14th. It, as you know, protects "the same rights to make and enforce contracts". I think early Court decisions that limited the scope of the CRAs were wrong and correctly overruled later.While I think that inconsistent rights are a logical proposition and not a logical fallacy, I am critical of affirmative action on a continuing basis. As an equitable remedy for a temporary period I had little problem with it, but a generation passed and it became time [a decade ago] for aa to pass, too, exactly because it was reliant upon race based classification.

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  55. For any folks who like exploring legal/philosophical issues like this, I wanted to note that Volokh Conspiracy (there's a link on the side) is a great blog where law profs and smart people discuss legal hot-button issues (and often other topics of interest like grammar disputes, rhetoric, etc.) Here is a post on the case we've been discussing.The comments sort of degenerate into a spat, but one theme I noticed was that some folks were making the argument that lms might be raising above that they would insist that churches be "consistent" in "discriminating" against adulterers, etc. A huge problem with this argument is that it of course puts the government and the courts right in the middle of policing the doctrinal consistency of religious organizations. This is a point where I think Mark and I are in agreement–we don't want the government mucking around in there deciding that plaintiff A has a claim against a church because the church was no sufficiently consistent in firing an alleged adulterer.

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  56. lms:When your freedom of action infringes upon another's freedom of action we are then forced to "coerce" a different outcome.How could my freedom of action impinge upon another's unless I initiate coercion against him?That's where the debate is, not the definition of a right.You cannot have a discussion about the rights that people have without first having an understanding about what the term "right" means. When it is said that person A has the right to X, what does that mean to you? To me it means that A is morally sanctioned either to utilize X as he sees fit if X is a material thing (eg the fruits of his labor) or to have the freedom of action to pursue X as he sees fit if X is some non-material thing (eg happiness or life), provided that X does so without initiating coercion against another.

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  57. that should say "provided that A does so…"

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  58. While I think inconsistent rights are a logical proposition, I think that balancing them is what the Supremes are supposed to do.For example: "free exercise" of religion vs. "no establishment" of religion requires this sort of balancing.Is there a difference between permitting a temporary nativity scene in a public park and building a permanent crucifix? Yes, IMO – the first, if the permitting was first come first serve, allowed a segment of the public to use a public place for the free exercise of religion, but the latter dedicates an establishment of a religious symbol on public land.But every use of public space or public schools for religious purposes is subject to this kind of balancing – is the use essentially a free exercise or essentially an establishment?For me, the school prayer cases should bright line split at a different place than they do now. A classroom prayer recitation has the element of compulsion coupled with the element of religion, but for me a moment of silence does not. And, for me, the prayer before the football game has no element of compulsion and no material element of a governmental stamp of approval. That is much a closer case on the second count, in the minds of many lawyers. IMO the public school "winter pageant" is justifiable on musical grounds, and I would wink at it. Although we all know what it is intended to be by some, it is actually just singing and getting out of class for assembly as far as most kids are concerned, even if they are offended by the lyrics. Closest most kids get to serious music is Handel's Messiah. Justice Burger, in winking mode, actually once wrote that Jesus was a folk hero, I think in Lynch.

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  59. Mark:While I think that inconsistent rights are a logical proposition and not a logical fallacy….Clearly legal rights can be in conflict. But I do not see how natural or moral rights can logically be seen to be in conflict, unless you define the term "right" in a way that I am not familiar with.

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  60. Arguing from "natural law" while having a truly remarkable historical influence on the development of Anglo-American law, can create its own set of paradoxes, Scott.I usually speak merely of legal "rights". When I suggest a legal right should be different than it is, I try to support it with some evidence, but my POV is subject to my own subjective standards, being human, or nearly so.

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  61. Scott, do you see the potential of conflict between the "free exercise" and "establishment" clauses? Did my discussing them in the public park and public school context make sense to you? How would you address those issues?

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  62. Mark:Well, since law can be made to say anything that the makers of law want it to say, there is no doubt that legal rights can be inconsistent, as has been demonstrated time and again by our own lawmakers.But the notion of legal justice is grounded in the higher notion of moral justice. It doesn't make sense to me to speak of justice in a strictly legal sense. Laws are not an end in themselves.

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  63. Mark,It strikes me that the seeming conflict between the free exercise and establishment clauses is ultimately grounded in the existence of public schools. If the state had not gotten into the business of determining how children must be educated, this conflict would not exist, at least as regards prayer in school.With regard to a nativity scene in a publicly owned space, I would say that religious displays on publilc land do not in any way constitute the establishment of a state religion, even if the display space is not open to all religions. Does the fact that a municipality owns and operates a golf course but not a bowling alley constitute the establishment of a state sport?

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  64. Scott, there are bodies of law based on "moral concepts", "natural law", and the like, particularly criminal law and tort law.There are bodies of law based on the current analyses of what will facilitate willingness to trade, or encourage it, in the long run; e.g. contract law, securities law, banking law, anti-trust law, bankruptcy law.There is a body of law based on the proposition that permanence is reliable: real property law. Commercial law has "infected" real property law since the 19th century. Real property law also had elements of "moral" arguments from the beginning. But descending from a feudal understanding of natural law, you probably would have taken issue with early English court made property law.This is way more complicated then resorting to "moral" arguments as final arbiter. And I do not think a unified field theory of law is even possible.

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  65. Allow me to interject a couple of thoughts re religion and the notion of conflicting rights.I don't view matters like nativity scenes or posting of the Ten Commandments in a court house to represent a conflict between rights, because when we decide such cases we decide which claimed rights are real ones and which aren't (legal rights, at least). Or perhaps it is better to say, it really doesn't make much sense to say that someone has a right to X when a court can say and does say that this "right" is trumped by someone else's right.In my case, I don't see things like nativity scenes as constituting an establishment of religion; they are far, far removed from the original and textual meaning of the clause (leaving aside the mess created by the doctrine of selective incorporation, which extended the clause to states).More deeply, however, conceiving of the Free Exercise and Establishment clauses as being in tension always seems to me to misconceive or overlook their different natures. The Establishment Clause simply says that Congress shall make no law respecting an establishment of religion. It is not really a declaration of a personal "right" except insofar as it can be viewed as a corollary of the same right declared by the Free Exercise clause. The free exercise of religion, moreover, does not require me to be able to establish my religion as a state religion.

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  66. If I was not clear, I agree with you about the nativity scene [unless it was preferentially allowed].If you suggest that "public schools" are problematic as the work of government, we merely disagree. But if you suggest that because there should not be public schools the religion "problems" within them should not be addressed we are unable to have a discussion, because, in fact, public schools exist and they are a nearly universal institution that must be addressed, because they exist.

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  67. QB, we cannot leave aside incorporation.I agree with the notion that this is two sides of the same coin. I think courts try to draw lines between the two clauses and I suggested where I would like them drawn a little more clearly. I am curious as to your take on permanent granite displays as opposed to temporary and movable ones on public property, and your view on compulsory classroom prayer vs. moment of silence and football game benediction.

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  68. Mark, by leave aside, I simply meant that for purposes of thinking about what establishment is without reference to which level of government, although the Establishment Clause and the whole First Amendment are to me great examples of the huge error that selective incorporation was and is. Some colonies and early states had estabished churches. I am glad they don't now, but I would greatly prefer that a different route had been taken than incorporation, which I think has little intellectual merit.I don't see permanent displays or moments of silence as establishing a religion. The early federal government went far beyond things like this in supporting religion (Christianity in particular); the Framers didn't seem to think this remotely established a religion. Judged by that standard, classroom prayer would not either, although the word "compulsory" begins to raise questions. If the Court had not invented the idea of selective incorporation, and the federal government were not exceeding its boundaries and involving itself in public schools, this likely would not even be an issue.This is in keeping with the point at the end of my post. The more invasive government becomes, the more conflicts it creates. Parents who want their children to be educated in an environment that is consistent with and reinforces their religious commitments are nevertheless compelled to support a public school system that may not (and likely will not) do this. The best they can hope for is that the school is not actively antagonistic to them.

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  69. "Parents who want their children to be educated in an environment that is consistent with and reinforces their religious commitments are nevertheless compelled to support a public school system"They also have to pay taxes for roads they may never drive on. Sure, they drive on some of them, but does anyone really ever drive on all of them? ;)I pay for fire service, but have yet to once use the fire department, and I'm 42. I may never need to call of them (knock on wood).

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  70. Interesting discussion everyone. Thanks. My common sense approach and lack of legal training has left me in the dust trail, but I learned a few things, so thanks. I even understood some of it, lol.

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  71. Mark:If you suggest that "public schools" are problematic as the work of government, we merely disagree.Well, they are certainly problematic in that they create conflicts between two otherwise non-conflicting parts of the constutiton. I was merely pointing out that the seeming conflict between the establishment and free exercise clauses is not inevitable. It is strictly a function of an action that the government has chosen to take.The government having taken that action and created the conflict, we can, and I suppose must, discuss which clause should "trump" the other in which circumstances. But at that point there is no particularly definitive or satisfying answer to me. It becomes largely a matter of personal preference or taste. I don't like the idea of mandatory class prayer (but I do like the idea of reciting the pledge of allegiance), while a football game benediction is not at all offensive to me. But I can't argue for or against either based on a firm principle.

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  72. Kevin:They also have to pay taxes for roads they may never drive on. Sure, they drive on some of them, but does anyone really ever drive on all of them?Seems to me you are just helping to make QB's point. The more invasive the government becomes, the more conflicts it creates.

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  73. BTW, Kevin, a road is much closer to being a "public good" in the true economic sense of the word than is a school.

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  74. Scott, my Pakistani born clients say that what Pakistan needs more than anything is a secular school program as a public good. They see two Pakistans: the secular one, which admires the UK, Australia, Canada, and the USA and which sends family members like themselves out, in order to avoid the other one, which is either illiterate or educated only in some mullah's version of Koran.

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  75. Mark:Something can be good for the public without being a public good. When I speak of a public good in the true economic sense, I am speaking of a good 1) the consumption of which by one person does not prevent others from consuming it and 2) which consumers cannot be easily or effectively prevented from using.

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  76. I work for a public school system, and will have you know that public education is awesome. Nuff said.

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  77. I agree with you kevin, and not just because they're lucky to have you. I am a product of the public school system as are all of my children. We thank our lucky stars around here for the public school system.

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  78. Kevin/lms:Public school systems may be awesome (although some are undoubtedly horrendous), but they are still not a public good in the economic sense of the word. There is an economic rationale to having the government provide public goods that does not apply to education.

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  79. Some private schools are horrendous–depending on your criteria. My daughter went to a parochial school for a year. I was not a fan. I think shared basic education, at the very least, is a pubic good, especially as it teaches real skills, such as reading, writing, arithmetic, and even basic social studies and science. Are school sports or chorus really a net public good? I suspect not, but it is in everybody's interest that children learn to read and write and do basic math, and, generally, the more educated the better. Yes, there are high school and college graduates in prison, but they are far outnumbered by folks that lack a functional education. There are certain dysfunctional school systems, and I disagree with the approach we're taking here (and many other systems do) of becoming increasingly huge, centralized school systems. But the general principle–that every child who is capable must learn to read and write and do math and end their school years with the prerequisite practical skills to conduct themselves in their adult life and perhaps go on to college or trade school–that is a public good. I am prejudiced in my position, of course, but I do believe it. A literate populace is a greater public good than a road, in my opinion, although there may be a narrow economic definition where this would not, technically, be true, I stand by the thrust of my argument–which is that it is the publics business to provide a basic level of education, and it is worthwhile, and even those without children, or who send their own children to private schools, have an interest in every child receiving an education, not just their own. And everyone in a public school should learn English, and all classes (other than English as a second language) should be taught in English, but I digress. lmsinca: I am also a product of the public school system. It was okay. Years later, I can fantasize a education experience, customized to me, that would have been much, much, much better. But that's not the point of public school. The point was to eject me into the world with basic skills in reading and writing and math, so that I could continue to teach myself about computers, databases, writing, art, design, etc. Most of the knowledge I use in a career sense, I taught myself. The foundational skills that I needed in order to do that came from school–and, given my parents' disinterest in my education, and various other factors, the public Memphis magnet school program saved me. But I do not argue that that was necessarily in the public interest. I'm glad the unique curriculum of the magnet school was able to unearth some potential in me that, otherwise, would never have come out, but that's a single, personal case. That we have a generally literate society with basic math skills–that's a public good. And, if we had an even more literate society with even better math skills , it would be public gooder. ;)How well the public schools execute their primary mission is always up for debate: most students could be better educated than they are. Most people have had an experience of an excellent teacher that makes you wonder–what if all my teachers had been this way? But I have a hard time agreeing that an educated population is not a primary public good, and one the government must be involved in in some manner, either by providing for public education, or by mandating compulsory education, paid for by parents.

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  80. Kevin:We are perhaps having a semantic difference. You make lots of reasonable arguments as to why widespread education is a net benefit to society. But that doesn't make it a public good in the normally understood, economic sense of the term.The term "public good" is an economic term used to identify services/goods with specific characteristics, namely goods that are non-rivalrous and non-excludable, and because of these characteristics it is often the case that government needs to be involved in the provision of them. Education is not one.You may want government to be involved in education for policy reasons, or to promote certains ends which you find desireable for society at large. But that does not make education a public good.

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  81. I'll take that argument, although, for it to happen broadly, the government does have to be involved in education–either by making it publicly available (and making it compulsory), or just by making it compulsory. Checking the book of knowledge, I see that: "Non-rivalry means that consumption of the good by one individual does not reduce availability of the good for consumption by others; and non-excludability means that no one can be effectively excluded from using the good."I suppose that would make classroom education a private good. Agreed, not quite what I was thinking of when I used the term "public good". But then, I went to art school. 😉

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