“No specific performance” doctrine

For anyone still how hasn’t had his or her fill of the issue… Andrew McCarthy writes that the RFRA isn’t a good law and that “We used to understand that our law isn’t capable of making people coexist cooperatively — only peacefully.”

Back when there was more wisdom in the practice of law, meaning back when the profession had more humility, there developed a sage doctrine: Courts should resist ordering “specific performance” when a personal service contract is breached. The idea is that when a provider, especially one of small scale, breaks an express or implied agreement to provide a service to a consumer, it is not sensible for a judge to direct that the agreement be carried out as written.

The doctrine leapt to mind during this week of manufactured controversy over the state of Indiana’s near-verbatim replication of the federal Religious Freedom Restoration Act (RFRA).

The “no specific performance” doctrine recognizes that, while our law is capable of many things, it cannot force people to get along. To try to do so, especially with people embroiled in a bitter disagreement, would more likely lead to additional strife, not calm resolution. What’s more, there are other, better ways to make a wronged party whole.

In most instances, for example, a court can order money damages. That leads us to another quaint bit of prudence: If there are no concrete damages, there is no legal case. Of course, the lack of a clear, measurable harm that can be compensated by money does not necessarily translate into the absence of a wrong. But not all wrongs are fit for judicial resolution. Some are too trivial; others implicate social relations that, in a free society, are best left to political processes or market forces.

Why does a family pizzeria’s business have to ignite a civil-rights firestorm? Why can’t it be treated just like any other run-of-the-mill breach of a caterer’s agreement to supply food? Indeed, in the Indiana dispute over the pizzeria’s theoretical objection to catering a same-sex wedding, we don’t even have an agreement except to the extent one is implied by the mere fact that the business is open to the public. And there are plainly no damages: Even if this pizzeria does not wish to cater a same-sex wedding (assuming it were ever asked to do so), there must be scores if not hundreds of pizzerias that would welcome not only the business but the favorable publicity for taking the gig.

If this were actually about pizza, a demand for specific performance would be frivolous. We have a controversy in Indiana, and now nationally, only because liberal fascists want a controversy. They want what a free society should never grant: License to use the law not as a protective shield but an offensive sword for extorting compliance with their own intolerant agenda — something that, as Tammy Bruce explains with moving eloquence, ought to be especially offensive to gay people who’ve felt the sting of condemnation over being different.

He provides a bit of (surprising?) history:  the RFRA was written in response to a SCOTUS decision penned by Justice Scalia (!) that “If you hold that a person can flout the laws that apply to all of us because of his subjective religious beliefs, he becomes a law unto himself. That is an invitation to anarchy.”

Moreover, RFRA does not provide a principled, knowable carapace of religious freedom. Rather, it transfers the power to decide what religious convictions will be respected from where it belongs, in the hands of free people through their elected representatives, to where it should not reside, in the whims of politically unaccountable judges whose sensibilities often differ widely from the community’s sensibilities.

When someone claims a law burdens religion, RFRA imposes a test: The government must prove that the law serves a compelling public purpose and represents the least burdensome manner of doing so. There is no reason to believe judges are better equipped to perform that balancing than legislatures; and there is nothing about a law degree that makes a judge a suitable arbiter of which tenets of your faith outweigh the government’s interests, and which do not…

Trumped up controversies like the one in Indiana are needlessly divisive. There would be many more Americans supportive of, or at least resigned to, the concept of gay marriage if it were just a matter of live-and-let-live tolerance. Instead, the Left’s agitators have made it the leading edge in a campaign to suppress traditional religious belief. They demand not toleration but compulsory approbation — with dissenters stigmatized and subjected to the prohibitive expense of legal fees.

We should not allow the law to be used this way. The law is supposed to be a reflection of our social consensus, not a cudgel to impose an unpopular outcome that breeds resentment.

This entry was posted in Culture and Religion, Freedom, Politics. Bookmark the permalink.

One Response to “No specific performance” doctrine

  1. Paul Marks says:

    The law (the real law – not the ravings of “legislatures” and P.C. judges) is not about “consensus” – there can never be “consensus” between those who wish to use force against others and those who oppose them. In every society there is conflict (not consensus) between these two groups. They are enemies – enemies to the death. There can be no “peace” between the supporters of private property and the enemies of private property (such enemies as the modern university crowd and the modern media crowd).

    As for “implied agreement” – there is no implied agreement, opening a shop is NOT an “implied agreement” to serve any person who comes into that shop. I am sick and tired of the lies of lawyers (with the late Imperial Roman nonsense about “common carriers” and “public accommodations” – as if the Emperor Diocletian was a man of justice, and his idea of a “public place” meaning a government place was correct). At least an open bandit is honest about what they are – lawyers pretend to serve justice whilst really using the threat of violence to attack private property, for private property is what a shop (or any other business) is.

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