On the invention of new “rights”

Is this the trainwreck Maggie Gallagher said was coming?

According to the Boston Globe, a man named Stephen Dunne “claims he failed the Massachusetts bar exam because he refused to answer a question about gay marriage [and] has filed a federal lawsuit, saying the test violated his rights and that his religious beliefs were targeted.”

Mr. Dunne was denied a license to practice law after scoring just below the 270 passing grade, apparently all because of a single question. He is seeking $9.75 million in damages.

Although civil marriage is an area of civil law, Mr. Dunne is offended by the requirement that he know about it.

He said the bar exam is not the place for questions about same-sex marriage.

David Yas, the editor of Massachusetts Lawyers Weekly, pronounced this idea “idiotic.”

“Knowing the law has nothing to do with agreeing with the law,” he said. Yas said if Dunne really believed the question was improper, he should “answer the question correctly, get your law degree and use it to argue for what you believe in.”

If this is not the definition of “special rights,” I don’t know what is. I really just don’t know what else to say.

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27 Responses to On the invention of new “rights”

  1. David says:

    That’s the magic of Extra Special Rights.

  2. Russell says:

    Wouldn’t murder be against his religious beliefs, and as such, the defense of an accused murdered?

    I bet he answered and got those questions right. I would be so suspicious as to think that he taking the bar exam and not answering that question about marriage law was part of an AGI agenda so that a lawsuit could be filed. I wonder if Stephen is a member of ____________ (fill in the blank).

    Things that make you go … Hmmmmmmmmm.

  3. Jack says:

    I’d really like to pummel some people about the head and shoulders and yell, “You’re not helping!!”

    My only answer to this idiot would be, “Then get the rest of the questions right!”

    This is like Al Gore contesting Florida — he would have won had he not lost his own state.

  4. Jack says:

    I just had a thought. Barbara and Steven aren’t plants of yours, are they?

    That WOULD be devious.

  5. David says:

    And don’t forget Pastor Ahlemann. That would be devious, wouldn’t it?

    Let’s just say that sometimes these individuals find themselves standing before a crowd with a bullhorn, and it is a position that they are not prepared for.

    You have surprised me, Jack. You have shown yourself to be an honorable person who is willing to engage in this conversation, and that’s really all that we’re trying to do here. Have you read my analysis of the Maggie Gallagher article referenced in this post? What are your thoughts?

  6. Jack says:

    I think Gallagher’s analysis is pretty good. Remember, it is not just her, but the whole panel that thinks so, including a gay-rights activist. (I don’t see Dunne as an example of the “train wreck,” because there is no requirement that one has to agree with the law to be a lawyer, only to know the law. If one had to agree with the law before becoming a lawyer, who would take the cases to the Supreme Court?)

    I do think Catholic Charities of Boston is a good example. They were commanded by their religious leader not to place children with same-sex couples. The state laws do not allow them to have that restriction. Personally, I don’t think they should place children with any but Catholic couples — all other’s (Jews, Protestants, Muslims, etc.) will be teaching the child in a way that will lead to his damnation. (I am making assumptions about the Catholic belief, so I may be wrong here, but you get the idea.) Under no circumstances can the child’s earthly well-being offset the loss of his soul. Therefore, their restriction, in their view, is in the best interests of the children.

    If Catholic University or Notre Dame were to forbid admittance to people in same-sex marriages, would they lose their accreditation? Should the NCAA ban their teams? Can a Christian high school in Boston now lose it’s tax-exempt status because it teaches that homosexual acts are sinful?

    It seems to me that religious liberty trumps civil liberties. Why? The First Amendment guarantees the free excercise of one’s religion. (That prohibition on Congress has been expanded to the state and local governments.) Civil liberties are NOT so protected. Look at the 14th Amendment, Section 1: “No State shall… deny to any person… the equal protection of the laws.” In the adoption case, what “equal protection” would be violated? Are there no other adoption agencies? One agency’s not doing same-sex adoptions does not change the supply-and-demand equation, and so does not reduce one’s chance of adopting.

    The same applies to religious schools. An admission policy against children of homosexuals, or against homosexuals themselves, does not change the supply-and-demand equation of education, and does not change one’s odds of getting into a school. The same applies to employment discrimination. If an employer hires a heterosexual instead of a homosexual, then that heterosexual was NOT hired somewhere else, and the supply-and-demand equation remains the same, and one’s odds of getting a job are unchanged. In fact, you might even support publicizing such policies. Then, homosexuals would know which employers to avoid. The discriminating employers would have a smaller pool of workers to choose from, and should therefore be inferior to those that can select from a larger pool. Furthermore, you could organize boycotts of such businesses, and drive them out of business.

  7. Russell says:

    I’m not sure a religious organization running an adoption agency or a school is in the realm of freedom of religion or the expression of it, but I do not know. It seems to me to not be the same thing. Constitutional notes, and input from the original states, are clear when talking in context about how the constitutional wording was formed for the final phrasing and the expression of religion meaning to worship.

    It is also interesting that constitutional notes and analysis see that the 1st amendment also prohibits federal government aid to any religion. However, on a state level, state constitutions are the prevailing authority on that states relationship in church matters since the constitution is a federal authority. In fact, the US constitution does not prohibit any state from establishing an official state church.

    As far as church and state (meaning federal gov) .. T. Jefferson has the main sentiment;
    “Believing with you that religion is a matter which lies solely between man and his god, [the people, in the 1st Amendment,] declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state.”

    And since we all live in Virginia, T. Jefferson authored a state bill that was passed in 1785, which I find quite interesting:
    “… no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”

    And, really going back to the expression of religion, Jefferson, in Virginia, gives us another act passed that actually defines religious freedom because the constitution fails to;
    “In the preamble of this act religious freedom is defined; and after a recital ‘that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy which at once destroys all religious liberty,’ it is declared ‘that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order.’ In these two sentences is found the true distinction between what properly belongs to the church and what to the State.”

    Fascinating stuff “¦ how soon we all forget.

    Of course, the consistency of application and interpretation is up for debate, but I would have a tendency to side with the supporting writings and letters of our founding fathers and their interpretations as to what they meant when trying to form a “more perfect union”.

    What I read is that religion, and the free exercise thereof, is opinion and its’ corresponding communication (i.e. ““ preaching from the pulpit), which is different from acts of religion. Seemingly, the operation of an adoption agency by a religious organization is an overt act. Whether or not the limitations placed on an adoption by this religious organization is “against peace and good order” is probably debatable, but I would say it is by the overall sentiment of the benefits provided and the withholding of those benefits.

    Not surprisingly, preaching from the pulpit about transferring religious opinion and principles into overt action, such as election or legislative activism in the name of that religious principle (or even a hate crime), would justify governmental interference.

    In my humble opinion.

  8. Russell says:

    Additionally, the supreme court had THIS to say :

    “”The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.'””

    And finally, in 1971, The Lemon Test for a law was established by the Supreme Court;

    “”In the absence of precisely stated constitutional prohibitions, we must draw lines with reference to the three main evils against which the Establishment Clause was intended to afford protection: “sponsorship, financial support, and active involvement of the sovereign in religious activity.”””

    “”Every analysis in this area must begin with consideration of the cumulative criteria developed by the Court over many years. Three such tests may be gleaned from our cases. First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster “an excessive government entanglement with religion.”””

    It is funny that we have to protect ourselves from ourselves, otherwise a religion that I do not believe in would still be dictating what kind of clothes I can wear, or, worse yet, burn me alive in the name of salvation.

  9. Russell says:

    And that is why civil liberties trump religious ones.

  10. David says:

    I don’t see Dunne or Thomas the Tank Engine as an example of the train wreck. Yes, this is why he is smiling.

    My criticism of Gallagher isn’t that the conflict itself isn’t real. When I say that it’s “manufactured,” I’m saying that the way she frames it is contrived. It’s also strangely, perhaps unintentionally, honest. She reveals what the real problem is without fully acknowledging its significance. As you point out, and I say this in my post, pro-equality scholars “readily acknowledge that anti-gay bias will in the future become as socially unacceptable as racism, and that these clashes will therefore be ‘severe and pervasive.'”

    One of the most prominent of these pro-equality scholars is Chai Feldblum, who agrees with Justice Scalia’s definition of “the gay agenda.” This “agenda” is indeed “directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”

    It’s what Gallagher says next that is so revealing: “..we don’t arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities.”

    Exactly, and that has happened because of shifts in public opinion. It wasn’t considered immoral to be racist in the past, and now it is. Racist ideas have become marginalized, and religious beliefs are no longer considered a legitimate basis for putting them into practice. Bob Jones University discovered this when attempting to defend its prohibition on interracial dating on biblical grounds.

    I think you are absolutely right in what you allude to in the supply-and-demand argument, in that this “agenda” is not something that ultimately can be legislated or litigated, it’s something that can only occur as the result of shifts in public opinion.

    The fact is that the view that being gay is wrong or abnormal is becoming marginalized. The more that people can compare the machinations of the anti-gay industry with the actual gay people with whom they interact, the more that public opinion shifts. And that is the key point, that there must be open and honest gay people with whom to interact. The objective of preventing this shift in public opinion requires an “agenda” of discouraging the visibility and full participation in public life of gay people, and cultivating a climate in which there is significant risk involved with not being closeted. That was the real objective of Virginia’s so-called “marriage amendment,” as admitted by one of its authors.

    If your objective is protecting your viewpoint from becoming marginalized, can you see how there is an inevitable interest in making gay people as silent and invisible as possible, and how that interest might intervene in our enjoyment of dignity, happiness and safety? That is the train wreck, and it’s very real.

  11. Jack says:

    OK, a lot to cover here, so I’ll take it a bit at a time.

    Russell — what you say about the federal and state governments was true once, but no longer. Although the 1st Amendment specifies CONGRESS, the Supremes have ruled that those prohibitions extend to the States, localities, and even schools. You might also notice that the phrase “separation of Church and State” is NOT in the US Constitution, but in the USSR Constitution.

    David — being gay IS abnormal. What’s the current consensus, 1-3% of the population? I do not think that is abnormal as my green eyes, but it is still abnormal.

    I think the Bob Jones case was wrongly decided. Their prohibition was widely known. Those who do not like it can get an education elsewhere. Even if their religious belief is misguided, it is still their belief, and the intention was to discriminate against them for it.

    “The objective of preventing this shift in public opinion requires an “agenda” of discouraging the visibility and full participation in public life of gay people, and cultivating a climate in which there is significant risk involved with not being closeted.”

    I agree, but the “pro-gay industry” is doing the same thing. Those who express the opinion that homosexual acts are wrong risk losing their jobs for it. Is that not part of your “agenda”?

  12. David says:


    You are using the term abnormal in an exceedingly narrow way. In the strictly statistical meaning, left-handed, green-eyed and homosexual people are all “abnormal.” However, in the case of left-handed and green-eyed people, one would never expect the term to be used in its defamatory sense. That is exactly the way in which it is deployed against gay people – as a slur – and that is the meaning that I intended. The difference, defined by John Money:

    The statistical norm tells us what the majority of people do most of the time. The ideological norm tells us what everybody ought to do all of the time in conformity to an ideological standard set up by a moral, religious, or legal authority.

    A more accurate and morally neutral term for your green eyes and my sexual orientation would be statistically infrequent variation, or just variation.

    No, I wouldn’t say that getting people fired for expressing an opinion is part of the agenda that Justice Scalia identified. You’ve argued elsewhere that employers ought to be free to fire people at will, for any reason at all. I disagree, but I do think that there’s a difference between expressing an opinion and behaving in a disruptive manner. There’s also a difference between behavior that simply reveals that a person is in a same sex relationship, like displaying family pictures on your desk or being honest when chatting with co-workers, and behavior that is uncivil and directed at specific people to make them feel unwelcome.

    In other words, being openly gay and deliberately making anti-gay statements are not equivalent. If we work at the same company and I fail to conceal the fact that I’m gay, that in no way has a direct effect on you. It’s not an opinion; it’s not an attack on you or on your religious beliefs; it has nothing to do with you.

    If you express your opinion that my family life is wrong in a way that is personally directed at me, however, that does affect me. If you are uncivil, if you say denigrating things about me to co-workers, if you behave as if shaking my hand might contaminate you (I’m not suggesting that you would do any of these things, they are examples of how I have been treated), then that could certainly be construed as creating a hostile environment and creating problems in the workplace.

    To be fair, I could also behave in a way that was inappropriate and deliberately created a hostile environment, by making derogatory comments about your beliefs, etc., but what I’m talking about in the paragraph above that you quote is not that, what I’m talking about is simply not being closeted. They are just qualitatively different things.

  13. Russell says:

    Yes Jack,

    I stand corrected on the 1st amendment extension to states (I realized that after I wrote the comment, sorry for that lapse), however, the separation of church and state was put into constitutional practice by the supreme courts’ interpretation of the clause, and since that is what their job is, holds as much weight and meaning as if it were actually written there.

    No offense, but since I am a citizen of and live in the good ole U.S. of A, I could care less what is in the constitution of another country, except maybe if I plan on moving there, and I can tell you quite positively I am not planning on moving to a country that does not exist anymore.

  14. Jack says:


    “statistically infrequent variation, or just variation.”

    That’s what “abnormal” means. However, the genetic prof at GMU called me a “mutant.” 🙂

    “You’ve argued elsewhere that employers ought to be free to fire people at will, for any reason at all.”

    Indeed, the case in question, however, was a GOVERNMENT employee.

    Russell — I just thought you’d like to know that Jefferson wasn’t the only place the leftists found that phrase.

  15. Russell says:

    Yes I would say that Jefferson and his pals that founded this country tended to lean left and the righties wanted to stay sucking on england’s breast.

    Wait a minute … !!! … you mean to tell me that this country was founded on liberal and leftist principles and ideas from liberal and leftist leaning people ??!!!

    (least you get confused about my comments, you can ask my friends here and they will tell you I by no means would be considered a leftist in the strict sense of the word)

  16. David says:

    Abnormal means more than that.

    Left-handedness, green eyes, and predominantly homosexual orientation are all examples of human traits that are normal, although statistically uncommon, variations.

    Orange eyes would be abnormal.

  17. Jack says:

    “Abnormal — not normal; not average; not typical; not usual; irregular, esp. to a considerable degree.”

    “Normal — conforming with on constituting an accepted standard model, or patter; esp., corresponding to the median or average of a large group in type, appearance, achievement, function, development, etc.”

    Sorry, David, homosexuals are NOT normal.

  18. Jack says:

    Russell — it seems my first reply did not go through. I’ll try again.

    “I would say that Jefferson and his pals that founded this country tended to lean left and the righties wanted to stay sucking on england’s breast.”

    The sentiment was, it is better to have one tyrant a thousand miles away than a thousand tyrants a mile away. Anyhow, if you think we revolted because we were “sucking on England’s breast,” then you do not know much about our Revolution. We revolted because England was taking too much from us.

    “you mean to tell me that this country was founded on liberal and leftist principles and ideas from liberal and leftist leaning people”

    Liberal, yes. Leftist, no. Liberals back then supported freedom of speech and religion, the freedom to hire whomever you wanted and to associate with whomever you wanted, and to not associate with those with whom you did not want to associate. They believed in the right to keep and bear arms, and in private property. None of these is supported by the “liberals” of today. The “liberals” of today are leftists.

  19. Jack says:

    By “leftists,” of course, I mean $ociali$t$ and c0mmuni$t$.

    (I have to misspell it to get it past the filters. Did you set this up, David, to reject “$ociali$t$” and “c0mmuni$t$,” and “1nce$t”?)

  20. David says:

    Sorry, David, homosexuals are NOT normal.

    Says the green-eyed mutant.

    No, I haven’t set anything up other than the customary spam filtering. I don’t know why those particular words are getting bounced.

  21. Russell says:

    Jack … read my comment again … the righties wanted to stay maternally attached to england. And yes, anyone reading the declaration of independence can figure that out what was behind the revolution.

  22. Jack says:

    Which is what you misunderstand, Russell — we were NOT “maternally” attached to England, and had not been for nearly a hundred years. England was sucking US dry. Go read the Declaration of Independence.

  23. Russell says:


    Let me try this again … do you not agree that there were people in the colonies that did not want to break away and be independent from England? (which we were really not independent until we won the revolution and secured sovereign freedom – otherwise we wouldn’t have been continued to be taxed by England and relied on England’s responses to governing grievances and their resolutions. That does not sound like independence to me, unless you mean that distance and a sense of autonomy signifies independence) If you say that we were independent from England for the previous 100 years, then why did we even bother to fight for freedom, or even HAVE to make a Declaration of Independence if we already had it? Not everyone agreed with the Declaration, because ultimately yes, it was all about money, and there were many people closely tied with England and loyal to the king, who where making much of it.

    And yes we have read the document many times – hence Equality Loudoun’s messages in the Leesburg parade … Don’t you find it funny that the George of our time seems to be similar to the George of their time?.

    Jack, sometimes I think you may get caught up in semantics. Instead of “sucking on England’s breast”, which denotes that we were being nourished, maybe I should have written something to the opposite like “being caught in the clutches of England’s parasitic appendages”. I have to remember that this is a written medium, and as a responsible communicator I probably need to be more direct and explain myself more clearly at times when communicating with your literalism. That is not meant as a slam on you, just as an observation of an indelible trait of who you are.

    Thanks … RUSS

  24. Jack says:

    Russell — certainly there were people that did not want to break with England, but NOT because we were dependent upon England and they wanted to continue to ‘[suck] on England’s breast.” Rather, they still felt a loyalty to England that the depredations of the current monarch had not yet destroyed.

    The colonies were NOT economically dependent upon England, but were economically and politically subordinate to England. However, “The Declaration of Insubordination” just doesn’t have a good ring to it.

    Finally, I don’t really buy your revision, “The righties wanted to stay being caught in the clutches of England’s parasitic appendages.” I don’t think so.