By Clifford Rosky
Just last week, I filed an amicus brief in Kitchen v. Herbert, the challenge to Utah’s constitutional amendment that bans same-sex couples from marrying. The brief was filed on behalf of Utah’s largest LGBT organizations, Equality Utah and the Utah Pride Center, and it was prepared with the generous help of attorneys at Zimmerman Jones Booher. In writing this brief, we tried to do something a bit different with United States v. Windsor: Rather than trying to avoid or resist the Court’s discussions of federalism, we showed that the Court’s analysis of the State’s authority to define marriage actually supports the invalidation of state laws under Windsor.
In Windsor, Justice Scalia and Chief Justice Roberts kicked off a national debate about how the Court’s invalidation of the federal Defense of Marriage Act would apply to state laws. While Scalia predicted that it was “inevitable[] to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Roberts argued “it is undeniable that [the majority’s] judgment is based on federalism.” “[I]n future cases about the constitutionality of state marriage definitions,” Roberts warned, “the State’s power in defining the marital relation . . . will come into play on the other side of the board.”
Since Windsor was decided, the litigation strategy in the states has proceeded largely as Scalia and Roberts predicted. In addition to making the familiar due process and equal protection claims developed in earlier cases, plaintiffs have now added a long list of quotations from Windsor. Following the blueprint laid out in Justice Scalia’s dissent, they have plugged in “this state law” wherever the majority opinion mentioned “DOMA.”
In reply, the States who have chosen to defend these laws have quoted extensively from the Windsor majority’s frequent bows to the State’s primary authority to regulate domestic relations: “domestic relations . . . has long been regarded as a virtually exclusive province of the States,” “the definition of marriage is the foundation of the State’s broader authority to regulate domestic relations,” “there is no federal law of domestic relations,” and so on.
In an attempt to have the final word on this matter, plaintiffs have responded by quoting the Windsor Court’s repeated warnings that although the State’s authority to define marriage is broader, it always remains “subject to constitutional guarantees.” In one instance, the Court’s warning include an intriguing cite: “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons, Loving v. Virginia, 388 U.S. 1 (1967).”
To date, this strategy has yielded a remarkable string of victories for plaintiffs: Since Windsor, all six federal judges to consider the question have ruled that states may no longer refuse to issue marriage licenses to same-sex couples, or refuse to recognize same-sex marriages performed in other states. In the next few months, we will begin to see how the these rulings will hold up on appeal.
After reading Windsor more times than I’d care to admit, I noticed an interesting idea that I hadn’t seen mentioned by plaintiffs yet, which I developed in our amicus brief: In describing the relationship between federalism and marriage, the Windsor Court seems to be offering an explanation of why States have the primary authority to define marriage. The explanation begins on page 2692, where the Court describes the significance of New York’s decision to recognize and allow same-sex marriages. As the Court says, the State’s decision was “without doubt a proper exercise of its sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.”
In the next sentence, the Court offers the first clue about why marriage is primarily reserved to the States, rather than the Federal Government: “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.” The thesis of this sentence seems fairly straightforward: In the federal system, we give States more authority to regulate our “daily contact” because States are local—smaller than the Nation, less populated, more socially interactive. By reserving this kind of authority to the States, rather than the Feds, we enhance our ability to govern how we interact with each other in our daily lives. Because marriage is quintessentially personal, it is quintessentially local.
In the next paragraph, the Court goes on to explain how this general theory of federalism applies specifically to marriage. Within a few sentences, it becomes clear that the Court is not about to countenance a popular vote on the validity of same-sex marriages. First, the Court writes that the State’s authority to define marriage is derived from the recognition that marriage is about more than just benefits: “The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits.” What more, you ask? Above all, the Court signals that marriage is a personal union between two adults: “Private, consensual sexual intimacy between two adult persons of the same-sex . . . can form ‘but one element in a personal bond that is more enduring.’’ “This status is a far-reaching legal acknowledgment of the intimate relationship between two people.”
On the following page, the Court adds one final thought on the link between federalism and marriage, which seems especially telling: “The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people.”
I think that this sentence—perhaps more than any other—strikes a decisive blow against state laws that ban same-sex couples from marrying. If anything, the Court’s theory of federalism and marriage indicates that excluding same-sex couples from marriage under state law, rather than federal law, has an even more profound impact upon them, by imposing inequality even more deeply into their daily lives. To take the most obvious example: Unlike DOMA, state laws actually prohibit same-sex couples from marrying in the states where they live—and in some cases, from entering into any domestic union at all.
Monday, March 10, 2014
Friday, March 07, 2014
The Regrettable Loss of Intellectual Nuance When Battle Lines Are Drawn
-- Posted by Neil H. Buchanan
On nearly any contested question, people who are thoughtfully engaged in the issue will regret the loss of nuance that comes when one is forced to choose a side. Even on those issues for which the answers and solutions seem manifestly clear, there are still details that need to be explored, and it would be best if we could think about them without fear that asking honest questions will be taken as a sign of weakness or bottom-line ambiguity.
Consider a few examples. The debate over energy policy necessitates some excruciating inquiries into the tradeoffs among environmental harms -- types of damage, long-term versus short-term, and so on -- from different energy sources, along with the costs and benefits (and limits) of conservation. In light of that, I have written (for example, here) that the least-bad choice for the United States today is to rely more on coal and less on oil and nuclear power. In the two years since I wrote that post, fracking has emerged as a headline issue, making natural gas suddenly a very prominent part of the debate. For the purposes of this post, I need not argue whether or not the available information about fracking is enough to conclude that it is worse or less-bad than coal. Assume for now that I would still conclude that coal is the least-bad choice.
When I wrote that post in which I reluctantly came down in favor of coal, of course, what I really argued was that we need to put a lot more money into developing alternative sources, as well as intensifying conservation efforts. Until those policies could take effect, we would need to make a choice among the high-volume energy sources. As difficult and counter-intuitive as it was to say so, it seemed (and seems) to me that coal is less terrible than its alternatives, taking everything into account.
Notwithstanding my attempts to be nuanced and to acknowledge the uncertain nature of the inquiry, I had identified myself as "pro-coal," and for some purposes, that is the end of the story. I received irate emails and comments from people who wanted to talk about how bad coal is, which I had already acknowledged. (It was not quite as bad as people who responded to my arguments about the debt ceiling by pointing out that the Constitution gives only Congress the power to borrow money -- duh! -- but it was categorically similar.) The highly contentious nature of U.S. political debates regarding energy, especially the presence of truly dishonest pro-coal propaganda from right-wing and industry sources, makes it nearly impossible to say, "You know, this is a difficult question."
In some ways, the energy debate is similar to the U.S. political atmosphere regarding policies related to Israel. People I have met from Israel tell me that they cannot believe how one-sided the U.S. political discussion is, with any deviation at all from the accepted line being attacked on a bipartisan basis as "anti-Israel." The political debate in Israel itself is, I am told, much broader -- even though it is obviously still quite heated. Yet in the U.S., acknowledging nuance is treacherous.
Another example, closer to my professional interests, is the non-debate over tenure. Nearly any thinking person knows that there are tradeoffs created by a system of tenure, and that supporting the institution of tenure is ultimately a matter of saying that the costs are swamped by the benefits. Yet it would be dangerous indeed, especially in the United States in the last few years, to say or write anything that says, "Let's think about ways to tweak tenure, to make it better." You're either for it or against it!
Such a reaction, moreover, is actually quite reasonable. The problem is that it is now necessary to make a different cost-benefit calculation, assessing the likely net damage from acknowledging problems publicly, and from allowing for the possibility that the system could be changed for the better. Opening up that possibility, under current political conditions, all but invites a policy overreaction. An attempt to give tenure a careful, critical look could all too easily result in the destruction of an essential social institution.
These thoughts were inspired by an email that I received recently from a biologist, who offered the observation that I discussed yesterday regarding the political concerns facing biology departments. He noted that legislatures do care about the political consequences of science, making political questions very much a legitimate matter of concern for supposedly apolitical "hard" scientists, even those who work in universities. The remainder of my post yesterday grappled with how academics should respond to politics, in light of threats to funding from anti-intellectual (and anti-thought) politicians.
In that same email, my correspondent noted that the recent hyper-politicization of climate science and evolution (his two specialties) had created an unfortunate reaction by scientists that is, viewed through the standard prism of intellectual inquiry, unduly rigid and hostile to constructive engagement with doubt. In particular, this biologist noted that he had recently attempted to offer a course in which students would confront gaps in scientific knowledge. As I understood it from his brief description, it appeared that he was planning to look not only at, say, the parts of the fossil record that are incomplete. That inquiry alone would be extremely dangerous in today's political environment.
More broadly, he wanted to equip students to understand the limitations of scientific knowledge, to allow them to respond intelligently to those people who seize upon scientific uncertainty and ambiguity to try to undermine the entire academic enterprise. For example, do scientists have fully supported stories of cause-and-effect explaining how medications affect the human body? Surprisingly, they often do not, because much of what counts as medical knowledge amounts to thinly supported beliefs that are based on crude empiricism.
This philosophy-of-science inquiry is among the most interesting, yet neglected, questions in all of academia. In my original field of economics, the doubts that should appropriately be included in the basic undergraduate curriculum (and certainly in the core graduate requirements) are shunted into under-enrolled elective courses that are thought of as "soft." Better to prove one's scientific mettle by taking another econometrics course! Sadly, it turns out that this repression of doubt is present in real sciences as well.
Again, however, I can see why my correspondent's colleagues pushed back so hard against his offering that course. (He ultimately had to offer it through a non-science program within the university.) Unlike in economics, where a little philosophical modesty could only improve matters, biologists understand all too well that, at least with regard to evolution and climate issues, nuance is dead. It shouldn't be, but it is. It would be all too easy to imagine a legislator holding a press conference to scream: "Even our local university's biology department admits that the science on evolution is contestable. Yet they won't hire anyone who believes in intelligent design. Teach the controversy!" That the legitimate doubts do not at all support the teaching of intelligent design would surely be lost under the political Klieg lights.
The real losers from this loss of nuance are, of course, the students and society at large. When legitimate questions can no longer be addressed openly and critically, for fear of political fall-out, knowledge cannot advance. This is an old story, but it is disappointing to see that it has now infected even the academic scientists whose work is so important to understanding these issues.
On nearly any contested question, people who are thoughtfully engaged in the issue will regret the loss of nuance that comes when one is forced to choose a side. Even on those issues for which the answers and solutions seem manifestly clear, there are still details that need to be explored, and it would be best if we could think about them without fear that asking honest questions will be taken as a sign of weakness or bottom-line ambiguity.
Consider a few examples. The debate over energy policy necessitates some excruciating inquiries into the tradeoffs among environmental harms -- types of damage, long-term versus short-term, and so on -- from different energy sources, along with the costs and benefits (and limits) of conservation. In light of that, I have written (for example, here) that the least-bad choice for the United States today is to rely more on coal and less on oil and nuclear power. In the two years since I wrote that post, fracking has emerged as a headline issue, making natural gas suddenly a very prominent part of the debate. For the purposes of this post, I need not argue whether or not the available information about fracking is enough to conclude that it is worse or less-bad than coal. Assume for now that I would still conclude that coal is the least-bad choice.
When I wrote that post in which I reluctantly came down in favor of coal, of course, what I really argued was that we need to put a lot more money into developing alternative sources, as well as intensifying conservation efforts. Until those policies could take effect, we would need to make a choice among the high-volume energy sources. As difficult and counter-intuitive as it was to say so, it seemed (and seems) to me that coal is less terrible than its alternatives, taking everything into account.
Notwithstanding my attempts to be nuanced and to acknowledge the uncertain nature of the inquiry, I had identified myself as "pro-coal," and for some purposes, that is the end of the story. I received irate emails and comments from people who wanted to talk about how bad coal is, which I had already acknowledged. (It was not quite as bad as people who responded to my arguments about the debt ceiling by pointing out that the Constitution gives only Congress the power to borrow money -- duh! -- but it was categorically similar.) The highly contentious nature of U.S. political debates regarding energy, especially the presence of truly dishonest pro-coal propaganda from right-wing and industry sources, makes it nearly impossible to say, "You know, this is a difficult question."
In some ways, the energy debate is similar to the U.S. political atmosphere regarding policies related to Israel. People I have met from Israel tell me that they cannot believe how one-sided the U.S. political discussion is, with any deviation at all from the accepted line being attacked on a bipartisan basis as "anti-Israel." The political debate in Israel itself is, I am told, much broader -- even though it is obviously still quite heated. Yet in the U.S., acknowledging nuance is treacherous.
Another example, closer to my professional interests, is the non-debate over tenure. Nearly any thinking person knows that there are tradeoffs created by a system of tenure, and that supporting the institution of tenure is ultimately a matter of saying that the costs are swamped by the benefits. Yet it would be dangerous indeed, especially in the United States in the last few years, to say or write anything that says, "Let's think about ways to tweak tenure, to make it better." You're either for it or against it!
Such a reaction, moreover, is actually quite reasonable. The problem is that it is now necessary to make a different cost-benefit calculation, assessing the likely net damage from acknowledging problems publicly, and from allowing for the possibility that the system could be changed for the better. Opening up that possibility, under current political conditions, all but invites a policy overreaction. An attempt to give tenure a careful, critical look could all too easily result in the destruction of an essential social institution.
These thoughts were inspired by an email that I received recently from a biologist, who offered the observation that I discussed yesterday regarding the political concerns facing biology departments. He noted that legislatures do care about the political consequences of science, making political questions very much a legitimate matter of concern for supposedly apolitical "hard" scientists, even those who work in universities. The remainder of my post yesterday grappled with how academics should respond to politics, in light of threats to funding from anti-intellectual (and anti-thought) politicians.
In that same email, my correspondent noted that the recent hyper-politicization of climate science and evolution (his two specialties) had created an unfortunate reaction by scientists that is, viewed through the standard prism of intellectual inquiry, unduly rigid and hostile to constructive engagement with doubt. In particular, this biologist noted that he had recently attempted to offer a course in which students would confront gaps in scientific knowledge. As I understood it from his brief description, it appeared that he was planning to look not only at, say, the parts of the fossil record that are incomplete. That inquiry alone would be extremely dangerous in today's political environment.
More broadly, he wanted to equip students to understand the limitations of scientific knowledge, to allow them to respond intelligently to those people who seize upon scientific uncertainty and ambiguity to try to undermine the entire academic enterprise. For example, do scientists have fully supported stories of cause-and-effect explaining how medications affect the human body? Surprisingly, they often do not, because much of what counts as medical knowledge amounts to thinly supported beliefs that are based on crude empiricism.
This philosophy-of-science inquiry is among the most interesting, yet neglected, questions in all of academia. In my original field of economics, the doubts that should appropriately be included in the basic undergraduate curriculum (and certainly in the core graduate requirements) are shunted into under-enrolled elective courses that are thought of as "soft." Better to prove one's scientific mettle by taking another econometrics course! Sadly, it turns out that this repression of doubt is present in real sciences as well.
Again, however, I can see why my correspondent's colleagues pushed back so hard against his offering that course. (He ultimately had to offer it through a non-science program within the university.) Unlike in economics, where a little philosophical modesty could only improve matters, biologists understand all too well that, at least with regard to evolution and climate issues, nuance is dead. It shouldn't be, but it is. It would be all too easy to imagine a legislator holding a press conference to scream: "Even our local university's biology department admits that the science on evolution is contestable. Yet they won't hire anyone who believes in intelligent design. Teach the controversy!" That the legitimate doubts do not at all support the teaching of intelligent design would surely be lost under the political Klieg lights.
The real losers from this loss of nuance are, of course, the students and society at large. When legitimate questions can no longer be addressed openly and critically, for fear of political fall-out, knowledge cannot advance. This is an old story, but it is disappointing to see that it has now infected even the academic scientists whose work is so important to understanding these issues.
Thursday, March 06, 2014
When the Palace Courtiers Hate the Pursuit of Truth, What Should the Wizards Do?
-- Posted by Neil H. Buchanan
Two weeks ago, I wrote a pair of posts (here and here) responding to a shameful op-ed column in The New York Times by Nicholas Kristof. Kristof purported to argue that the world is being impoverished by the increasing unwillingness of American professors to engage in public policy debates, because they are supposedly too busy being irrelevant and egg-headed. That, however, was merely a diversion.
In my second post, after I had dismissed the "cover story" of Kristof's column (the demonstrably false claim that professors are refusing to enter the public square), I noted that Kristof was doing nothing more than arguing that professors are too liberal. The question was why he would devote his Sunday op-ed space to that argument. "But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of professor-bashing? [A satisfying answer to that question] has to be able to explain why a liberal would attack a group of people whom he thinks are also liberal."
Upon further reflection, I am now surprised by how surprised I was by Kristof's column. The answer to my question of liberal-on-liberal attacks is old news -- so old that people have some simple shorthands to describe the phenomenon. This was, after all, merely Kristof's "Sister Souljah moment," his gleeful indulgence in "hippie punching." As I put it, in response to a reader's comment on my first post, Kristof's op-ed amounted to nothing more than this: "Professors don't shade their views to protect political sensibilities, which makes me uncomfortable, because I've bought into the absurd notion of 'balance' that has ruined journalism."
This is, therefore, a very old debate. Are professors too liberal, and if so, should anything be done about it? Now that I have seen through Kristof's smokescreen (probably later than almost anyone else who read that op-ed, I concede), I will turn to a part of that argument that has long annoyed me. In my second post linked above, I wrote: "Kristof appears to be saying that the way to assess the health of an academic field is to ask whether its practitioners line up with the current partisan make-up of the country. When did that become a meaningful criterion for intellectual value? Should biology departments also be concerned about political affiliations?"
In context, that was clearly a rhetorical question. If the question in any academic field is how to maximize intellectual value, it would be strange indeed if there were even a rough overlap between the political attitudes of professors and the range of views represented on the U.S. political spectrum. In fact, given that the current Republican Party so completely rejects what are often called Enlightenment values, it would be nearly impossible to imagine Republicans' attitudes being well represented in the quintessential Enlightenment institution that is the modern university. Universities focus on evidence and reason, while the current Republican Party rejects evidence and reason whenever they get in the way of blind faith and predetermined views.
As a baseline prediction, therefore, one would imagine that even professors with personal attitudes that would generally count as conservative would be put off by today's Republicans. And as I have recently argued, even people with conservative views can easily operate within the Democratic Party's broad range. Moreover, if we take seriously the Econ 101 idea that people vote to protect their narrow financial interests, even a conservative professor would understand who supports her professional endeavors, and who is actively undermining the intellectual pursuits that make her work possible.
Unsurprisingly, therefore, it does turn out that professors are more liberal than the public at large. Publications like Inside Higher Ed regularly report with breathless enthusiasm on polls showing that professors are on average fairly liberal. Although such stories generally carry slanderous quotes about, for example, how departments are skewed by "leftist groupthink," there is no proof that the generally more liberal views in academia are caused by "thought police." I have certainly seen, in economics departments, how something that one could describe as groupthink can take over in ways that badly skew the field. Of course, that skew is strongly to the right, even though the actual economic evidence strongly supports left-leaning views.
I am not saying, of course, that every department in every field is free of political bias. I am saying, however, that the evidence that professors are more liberal than the population can be easily explained by self-selection into a non-faith-based endeavor, along with pure self-interest. This conclusion is supported, moreover, by the finding that even supposedly apolitical departments are more liberal than the population at large.
For example, in the 2004 Presidential election, the voting population went 51-45 for Bush over Kerry (with 4% voting for other candidates). According to a study of professors' votes in that election, social scientists (including the sociologists whom Kristof specifically attacks) went 81-18 for Kerry. But science and math departments went 72-24 for Kerry, and even business/management departments split 49-49. It is hard to imagine that there is a serious tendency toward uniform political views in hiring decisions among, say, physicists and chemists, that would explain why they voted 3-1 for the Democrat.
Which brings me back to my rhetorical question from two weeks ago: "Should biology departments also be concerned about political affiliations?" If the idea is that we should allow academic departments to hire the best candidates, and the best candidates (for various independent reasons) end up being more liberal than the population as a whole, who should care? Especially given that there seems to be no evidence that college professors successfully impart any political viewpoints onto their students, it is not even plausible to complain that colleges are brainwashing impressionable youth, remaking America in their more-liberal image, as Republicans like Rick Santorum like to claim.
There is, however, a way in which my question is not rhetorical at all, which I have tried to capture in the (somewhat fanciful) title to this post. In response to my earlier posts, a biology professor responded to me in an email, saying: "Given that basic (vice applied) research is invariably better funded by left-leaning politicians, unfortunately the answer is 'yes.'" That is, bio departments must, as a matter of practical reality, worry about political affiliations. The king's wizards ultimately serve at the pleasure of the king, and if the king and his lackeys decide that the wizards are displeasing, then there will be no more wizards -- or, more likely, the king will explicitly make political views part of the process for selecting future wizards.
So, if funding is ultimately a political game (notwithstanding the various protections currently existing in our system, all of which are politically tenuous), is it possible to please the king and his court without being nakedly political? Can academics do anything, other than forcing themselves to change their research conclusions to please the politicians, that takes politics into account?
One possibility is to start explicitly playing the perceptions game. I am a registered Democrat, but (as readers of this blog know) I am pretty disgusted by the Democrats. I could register Republican, on the theory that they need to hear from an honest voice from within their ranks. Or, I could simply register as an independent, or refuse to register at all. If others followed my lead, the annual rankings that show that law schools have many more registered Democrats than Republicans would change. Those annual rankings were never meaningful in the first place, so this gaming of the system would hardly feel as if it was disrupting the integrity of an honest inquiry.
Short of deliberate manipulation of politicized processes, however, is there anything that professors/universities can or should do to protect the funding that is essential to carrying out their socially valuable roles? I honestly think that deliberately manipulating hiring decisions, to respond to dishonest calls for "intellectual diversity," would only make matters worse. It would amount to a confession of something that is not true, because it would have to be framed as, "We are so sorry that our processes have systematically excluded qualified conservatives. We'll start doing better now, by giving special consideration to people who are identifiable as conservatives."
That strikes me as an attempt to court favor by agreeing to corrupt the system. It has no limit, because it is always possible for the anti-intellectuals to say that there need to be even more conservatives. Then, when the conservatives gain a majority, they can engage in exactly the kind of ideological freeze-out that they complain of now. Again, the contrast between economics and law is instructive. When Chicago-school economists were able to do so, they simply took over the journals and the hiring processes, making it impossible to publish anything (and therefore to get hired) if one was not willing to work from the narrow set of conservative models that pass for "science" in that field. Whatever else one might say about law schools, it is still quite easy to publish conservative arguments in the top journals.
In short, I think the American academy is essentially on the right track. That is, we are trying to run an apolitical system within a political world. There are plenty of departures from the ideal, of course, but the alternative -- giving up on the idea that we should try to judge merit on non-political grounds -- is far worse.
Two weeks ago, I wrote a pair of posts (here and here) responding to a shameful op-ed column in The New York Times by Nicholas Kristof. Kristof purported to argue that the world is being impoverished by the increasing unwillingness of American professors to engage in public policy debates, because they are supposedly too busy being irrelevant and egg-headed. That, however, was merely a diversion.
In my second post, after I had dismissed the "cover story" of Kristof's column (the demonstrably false claim that professors are refusing to enter the public square), I noted that Kristof was doing nothing more than arguing that professors are too liberal. The question was why he would devote his Sunday op-ed space to that argument. "But if Kristof is a liberal (and most evidence suggests that he can be reasonably described as left of center), then what is the point of joining in what is usually the tired right-wing pastime of professor-bashing? [A satisfying answer to that question] has to be able to explain why a liberal would attack a group of people whom he thinks are also liberal."
Upon further reflection, I am now surprised by how surprised I was by Kristof's column. The answer to my question of liberal-on-liberal attacks is old news -- so old that people have some simple shorthands to describe the phenomenon. This was, after all, merely Kristof's "Sister Souljah moment," his gleeful indulgence in "hippie punching." As I put it, in response to a reader's comment on my first post, Kristof's op-ed amounted to nothing more than this: "Professors don't shade their views to protect political sensibilities, which makes me uncomfortable, because I've bought into the absurd notion of 'balance' that has ruined journalism."
This is, therefore, a very old debate. Are professors too liberal, and if so, should anything be done about it? Now that I have seen through Kristof's smokescreen (probably later than almost anyone else who read that op-ed, I concede), I will turn to a part of that argument that has long annoyed me. In my second post linked above, I wrote: "Kristof appears to be saying that the way to assess the health of an academic field is to ask whether its practitioners line up with the current partisan make-up of the country. When did that become a meaningful criterion for intellectual value? Should biology departments also be concerned about political affiliations?"
In context, that was clearly a rhetorical question. If the question in any academic field is how to maximize intellectual value, it would be strange indeed if there were even a rough overlap between the political attitudes of professors and the range of views represented on the U.S. political spectrum. In fact, given that the current Republican Party so completely rejects what are often called Enlightenment values, it would be nearly impossible to imagine Republicans' attitudes being well represented in the quintessential Enlightenment institution that is the modern university. Universities focus on evidence and reason, while the current Republican Party rejects evidence and reason whenever they get in the way of blind faith and predetermined views.
As a baseline prediction, therefore, one would imagine that even professors with personal attitudes that would generally count as conservative would be put off by today's Republicans. And as I have recently argued, even people with conservative views can easily operate within the Democratic Party's broad range. Moreover, if we take seriously the Econ 101 idea that people vote to protect their narrow financial interests, even a conservative professor would understand who supports her professional endeavors, and who is actively undermining the intellectual pursuits that make her work possible.
Unsurprisingly, therefore, it does turn out that professors are more liberal than the public at large. Publications like Inside Higher Ed regularly report with breathless enthusiasm on polls showing that professors are on average fairly liberal. Although such stories generally carry slanderous quotes about, for example, how departments are skewed by "leftist groupthink," there is no proof that the generally more liberal views in academia are caused by "thought police." I have certainly seen, in economics departments, how something that one could describe as groupthink can take over in ways that badly skew the field. Of course, that skew is strongly to the right, even though the actual economic evidence strongly supports left-leaning views.
I am not saying, of course, that every department in every field is free of political bias. I am saying, however, that the evidence that professors are more liberal than the population can be easily explained by self-selection into a non-faith-based endeavor, along with pure self-interest. This conclusion is supported, moreover, by the finding that even supposedly apolitical departments are more liberal than the population at large.
For example, in the 2004 Presidential election, the voting population went 51-45 for Bush over Kerry (with 4% voting for other candidates). According to a study of professors' votes in that election, social scientists (including the sociologists whom Kristof specifically attacks) went 81-18 for Kerry. But science and math departments went 72-24 for Kerry, and even business/management departments split 49-49. It is hard to imagine that there is a serious tendency toward uniform political views in hiring decisions among, say, physicists and chemists, that would explain why they voted 3-1 for the Democrat.
Which brings me back to my rhetorical question from two weeks ago: "Should biology departments also be concerned about political affiliations?" If the idea is that we should allow academic departments to hire the best candidates, and the best candidates (for various independent reasons) end up being more liberal than the population as a whole, who should care? Especially given that there seems to be no evidence that college professors successfully impart any political viewpoints onto their students, it is not even plausible to complain that colleges are brainwashing impressionable youth, remaking America in their more-liberal image, as Republicans like Rick Santorum like to claim.
There is, however, a way in which my question is not rhetorical at all, which I have tried to capture in the (somewhat fanciful) title to this post. In response to my earlier posts, a biology professor responded to me in an email, saying: "Given that basic (vice applied) research is invariably better funded by left-leaning politicians, unfortunately the answer is 'yes.'" That is, bio departments must, as a matter of practical reality, worry about political affiliations. The king's wizards ultimately serve at the pleasure of the king, and if the king and his lackeys decide that the wizards are displeasing, then there will be no more wizards -- or, more likely, the king will explicitly make political views part of the process for selecting future wizards.
So, if funding is ultimately a political game (notwithstanding the various protections currently existing in our system, all of which are politically tenuous), is it possible to please the king and his court without being nakedly political? Can academics do anything, other than forcing themselves to change their research conclusions to please the politicians, that takes politics into account?
One possibility is to start explicitly playing the perceptions game. I am a registered Democrat, but (as readers of this blog know) I am pretty disgusted by the Democrats. I could register Republican, on the theory that they need to hear from an honest voice from within their ranks. Or, I could simply register as an independent, or refuse to register at all. If others followed my lead, the annual rankings that show that law schools have many more registered Democrats than Republicans would change. Those annual rankings were never meaningful in the first place, so this gaming of the system would hardly feel as if it was disrupting the integrity of an honest inquiry.
Short of deliberate manipulation of politicized processes, however, is there anything that professors/universities can or should do to protect the funding that is essential to carrying out their socially valuable roles? I honestly think that deliberately manipulating hiring decisions, to respond to dishonest calls for "intellectual diversity," would only make matters worse. It would amount to a confession of something that is not true, because it would have to be framed as, "We are so sorry that our processes have systematically excluded qualified conservatives. We'll start doing better now, by giving special consideration to people who are identifiable as conservatives."
That strikes me as an attempt to court favor by agreeing to corrupt the system. It has no limit, because it is always possible for the anti-intellectuals to say that there need to be even more conservatives. Then, when the conservatives gain a majority, they can engage in exactly the kind of ideological freeze-out that they complain of now. Again, the contrast between economics and law is instructive. When Chicago-school economists were able to do so, they simply took over the journals and the hiring processes, making it impossible to publish anything (and therefore to get hired) if one was not willing to work from the narrow set of conservative models that pass for "science" in that field. Whatever else one might say about law schools, it is still quite easy to publish conservative arguments in the top journals.
In short, I think the American academy is essentially on the right track. That is, we are trying to run an apolitical system within a political world. There are plenty of departures from the ideal, of course, but the alternative -- giving up on the idea that we should try to judge merit on non-political grounds -- is far worse.
Wednesday, March 05, 2014
The Relationship Between Consent and Nonconsent
by Sherry F. Colb
My Verdict column this week discusses the recent Supreme Court case of Fernandez v. California, which held that one co-occupant can give the police valid consent to a search, even if the other co-occupant expressed his opposition to the search earlier (and is absent from the premises only because the police removed him in the course of a lawful arrest). My column takes the occasion of this decision to talk about how the Court classifies "consent" searches as "reasonable" searches and contends that the classification (and its doctrinal development) are less than ideal. In this post, I want to talk about the relationship between consent and non-consent more generally.
In its opinion in Fernandez, a majority of the Court contends that the consenting co-occupant's autonomy is best honored by treating her consent as decisive, notwithstanding the earlier objections of her now-absent (and abusive) boyfriend. In response to this claim, Justice Ginsburg suggests in a footnote of her dissent that the woman who consented to the search may have felt pressured to do so by the police and did not truly experience herself as exercising any real autonomy under the circumstances. This is a very important point and one that, I argue, should have received more attention in the dissent.
Let us put to one side, however, the question whether the woman in Fernandez did or did not truly consent to the police search at issue in the case. I want to focus here on the asserted relationship between consent and non-consent in facilitating autonomy.
As the majority in the case suggests, it dis-serves the autonomy of a person who sincerely wishes to consent to a search if we ignore that consent or allow someone else (in this case, a battering boyfriend) to overrule the consent from afar. In the case of police searches, of course, it may seem odd to maintain that prohibiting a search to which a homeowner has consented will substantially undermine the woman's autonomy. The Fourth Amendment, after all, protects people's interest in security against unreasonable searches and seizures rather than the affirmative interest in being searched, upon a voluntary consent.
If we turn from the area of search and seizure, however, to the area of sexuality, we can quickly see that the ability to have one's privacy against unwanted intrusions honored is significantly connected to the corresponding ability to have one's interest in pursuing wanted sexual interactions honored as well.
When I was growing up, I attended an ideologically conservative, Orthodox Jewish elementary school. In this school, our curriculum was divided into religious subjects, taught by religiously devout teachers, and secular subjects (such as math, science, social studies, literary arts, etc.), taught mainly by secular, religiously nonobservant teachers. In my religious classes, I learned about the concept of "modesty" or "tzniyut," in Hebrew. One aspect of modesty in Orthodox Judaism requires women and adolescent girls to avoid wearing clothing that might be described as sexy or provocative. Different groups of Orthodox Jews interpret this requirement in different ways, but in my school, we were taught to wear skirts that covered our knees and shirts that covered our elbows and were not very tight. The goal was to obscure the salience of the female form.
The teacher who taught us about modesty told us that Judaism (and by extension, other religions that impose rules of modesty on women and girls) respects females and aims to protect them from harassment and mistreatment. By contrast, the teacher claimed, secular America embraces pornographic images that implicitly value women only for their bodies and sexual attractiveness. At the time, this sounded plausible to me, and the highly sexualized images of women that we saw all around us (on billboards, in magazines, in television advertisements, etc.) seemed to confirm the claim. In a religious setting, a woman could obscure her sexual attractiveness and nonetheless be taken seriously as a thinking person, I concluded. The secular world highlighted women's sexuality and used it to degrade and subordinate women.
What I failed to appreciate at the time was that "modesty" of my school and the hyper-sexualized imagery of the world outside were not quite the opposites that my teacher had maintained. They instead represented the two "options" for women in settings in which women are given little autonomy: you can either be a Madonna (the mother of Jesus, not the singer) -- a good girl who refuses sexual advances and maintains her purity -- or a Whore, one who is sexually available to the highest bidder. One cannot, however, choose to be neither of these and instead dress however one pleases, consent to sex with some people, and refuse to consent to sex with others, and be taken seriously on one's own terms. One cannot, in other words, be an autonomous sexual agent, in the way that men can be autonomous sexual agents.
The very idea of "provocative" clothing implies that men (those who are, in this scenario, "provoked" by a woman's revealing clothing) are not really responsible for their sexual behavior. Once a woman turns them on, they simply must act on their arousal by harassing or assaulting the woman in question. The woman therefore has only one choice to make -- will she hide her sexuality and stay safe (or at least have people take her sexual assault seriously, if it occurs) or will she act on her own sexual urges and then assume the risk that she will arouse men in whose sexual company she is uninterested. Stated differently, the woman's non-consent is honored, but only so long as she never consents. Once she consents, she waives the right to withdraw that consent in the future, either from the particular man or, if she is unmarried, from any man.
My teacher said none of this, of course, but I think that it was implicit in the suggestion that it is women's responsibility to dress modestly and thereby avoid "attracting" unwanted attention. To say that one has to cover one's body to avoid being harassed or assaulted is to strongly imply that if one is harassed or assaulted after failing to cover up, it is one's own fault. When I attended college, long after I had learned about modesty, I came to believe in the contrasting slogan chanted at "Take Back the Night" rallies: "However we dress, wherever we go, yes means yes and no means no." In other words, dressing provocatively or walking around alone at night does not constitute any sort of "waiver" of bodily and sexual integrity. To suggest otherwise is to (improperly) blame predatory behavior on the victim.
How is all of this relevant to the Fourth Amendment? Its relevance is, as I suggested above, not very clear when the issue is whether to permit a consent search to go forward. Unlike sexual autonomy, it is rare that anyone would feel very strongly about her right to say yes to a police request for consent to search her home. The Fourth Amendment importance of consent to non-consent, however, has application beyond the consent search context. For example, people regularly decide to share their privacy (in their persons, houses, papers, and effects) with other people, and that ability to include others in their private zones is in fact part of what makes the privacy so valuable to people in the first place.
Yet the Supreme Court has consistently viewed people's decision to share their privacy with others as akin to a forfeiture of that privacy. Examples include the fact that none of the following receives privacy protection under the Fourth Amendment against police intrusion: the garbage one has left outside the curb of one's home (in part because one has consensually "shared" the garbage with the garbage collector and thereby effectively waived any interest in its privacy); the secrets one confides in a close friend who is actually an undercover police officer wearing a wire and electronic transmitter (because one has consensually "shared" one's confidences with a perceived friend); and -- most significant to the legality of the NSA's surveillance -- the phone numbers that one calls from one's telephone (because one has consensually "shared" that information with the telephone company).
In each of these examples and many others, the person in question could not really function in the world without "sharing" information or visual access to one's life to someone, a third party -- whether a close friend or a business whose services one needs. Yet the Court has often treated such life-enhancing (or life-necessitating) sharing as a waiver of one's privacy against police intrusions into the private areas of one's life.
It is true, of course, that if one broadcasts information or visual (or audio) access to one's life to "everyone" (for example, by yelling secrets across a crowded street), then police invade no reasonable expectation of privacy by also listening in. However, individuals sometimes choose to share their privacy in a less indiscriminate manner, much as people decide to have consensual sex with some but not other individuals. For police to treat such limited exposures as a relinquishment of privacy from government surveillance shares something in common with the decision to treat "promiscuous" women as subject to lawful harassment or worse.
Ultimately, for the law to show respect for an individual's right to say no (i.e., the right to privacy against unwanted intrusions), it must show due regard for the same individual's right to say yes to some intrusions and nonetheless retain the option of saying no to others. In that way, the options of consent and non-consent are intimately linked, and there truly is an autonomy interest (even as the Court perhaps opportunistically invokes it in Fernandez) in deciding when one wishes to share one's most private spaces with others, of one's own free will.
My Verdict column this week discusses the recent Supreme Court case of Fernandez v. California, which held that one co-occupant can give the police valid consent to a search, even if the other co-occupant expressed his opposition to the search earlier (and is absent from the premises only because the police removed him in the course of a lawful arrest). My column takes the occasion of this decision to talk about how the Court classifies "consent" searches as "reasonable" searches and contends that the classification (and its doctrinal development) are less than ideal. In this post, I want to talk about the relationship between consent and non-consent more generally.
In its opinion in Fernandez, a majority of the Court contends that the consenting co-occupant's autonomy is best honored by treating her consent as decisive, notwithstanding the earlier objections of her now-absent (and abusive) boyfriend. In response to this claim, Justice Ginsburg suggests in a footnote of her dissent that the woman who consented to the search may have felt pressured to do so by the police and did not truly experience herself as exercising any real autonomy under the circumstances. This is a very important point and one that, I argue, should have received more attention in the dissent.
Let us put to one side, however, the question whether the woman in Fernandez did or did not truly consent to the police search at issue in the case. I want to focus here on the asserted relationship between consent and non-consent in facilitating autonomy.
As the majority in the case suggests, it dis-serves the autonomy of a person who sincerely wishes to consent to a search if we ignore that consent or allow someone else (in this case, a battering boyfriend) to overrule the consent from afar. In the case of police searches, of course, it may seem odd to maintain that prohibiting a search to which a homeowner has consented will substantially undermine the woman's autonomy. The Fourth Amendment, after all, protects people's interest in security against unreasonable searches and seizures rather than the affirmative interest in being searched, upon a voluntary consent.
If we turn from the area of search and seizure, however, to the area of sexuality, we can quickly see that the ability to have one's privacy against unwanted intrusions honored is significantly connected to the corresponding ability to have one's interest in pursuing wanted sexual interactions honored as well.
When I was growing up, I attended an ideologically conservative, Orthodox Jewish elementary school. In this school, our curriculum was divided into religious subjects, taught by religiously devout teachers, and secular subjects (such as math, science, social studies, literary arts, etc.), taught mainly by secular, religiously nonobservant teachers. In my religious classes, I learned about the concept of "modesty" or "tzniyut," in Hebrew. One aspect of modesty in Orthodox Judaism requires women and adolescent girls to avoid wearing clothing that might be described as sexy or provocative. Different groups of Orthodox Jews interpret this requirement in different ways, but in my school, we were taught to wear skirts that covered our knees and shirts that covered our elbows and were not very tight. The goal was to obscure the salience of the female form.
The teacher who taught us about modesty told us that Judaism (and by extension, other religions that impose rules of modesty on women and girls) respects females and aims to protect them from harassment and mistreatment. By contrast, the teacher claimed, secular America embraces pornographic images that implicitly value women only for their bodies and sexual attractiveness. At the time, this sounded plausible to me, and the highly sexualized images of women that we saw all around us (on billboards, in magazines, in television advertisements, etc.) seemed to confirm the claim. In a religious setting, a woman could obscure her sexual attractiveness and nonetheless be taken seriously as a thinking person, I concluded. The secular world highlighted women's sexuality and used it to degrade and subordinate women.
What I failed to appreciate at the time was that "modesty" of my school and the hyper-sexualized imagery of the world outside were not quite the opposites that my teacher had maintained. They instead represented the two "options" for women in settings in which women are given little autonomy: you can either be a Madonna (the mother of Jesus, not the singer) -- a good girl who refuses sexual advances and maintains her purity -- or a Whore, one who is sexually available to the highest bidder. One cannot, however, choose to be neither of these and instead dress however one pleases, consent to sex with some people, and refuse to consent to sex with others, and be taken seriously on one's own terms. One cannot, in other words, be an autonomous sexual agent, in the way that men can be autonomous sexual agents.
The very idea of "provocative" clothing implies that men (those who are, in this scenario, "provoked" by a woman's revealing clothing) are not really responsible for their sexual behavior. Once a woman turns them on, they simply must act on their arousal by harassing or assaulting the woman in question. The woman therefore has only one choice to make -- will she hide her sexuality and stay safe (or at least have people take her sexual assault seriously, if it occurs) or will she act on her own sexual urges and then assume the risk that she will arouse men in whose sexual company she is uninterested. Stated differently, the woman's non-consent is honored, but only so long as she never consents. Once she consents, she waives the right to withdraw that consent in the future, either from the particular man or, if she is unmarried, from any man.
My teacher said none of this, of course, but I think that it was implicit in the suggestion that it is women's responsibility to dress modestly and thereby avoid "attracting" unwanted attention. To say that one has to cover one's body to avoid being harassed or assaulted is to strongly imply that if one is harassed or assaulted after failing to cover up, it is one's own fault. When I attended college, long after I had learned about modesty, I came to believe in the contrasting slogan chanted at "Take Back the Night" rallies: "However we dress, wherever we go, yes means yes and no means no." In other words, dressing provocatively or walking around alone at night does not constitute any sort of "waiver" of bodily and sexual integrity. To suggest otherwise is to (improperly) blame predatory behavior on the victim.
How is all of this relevant to the Fourth Amendment? Its relevance is, as I suggested above, not very clear when the issue is whether to permit a consent search to go forward. Unlike sexual autonomy, it is rare that anyone would feel very strongly about her right to say yes to a police request for consent to search her home. The Fourth Amendment importance of consent to non-consent, however, has application beyond the consent search context. For example, people regularly decide to share their privacy (in their persons, houses, papers, and effects) with other people, and that ability to include others in their private zones is in fact part of what makes the privacy so valuable to people in the first place.
Yet the Supreme Court has consistently viewed people's decision to share their privacy with others as akin to a forfeiture of that privacy. Examples include the fact that none of the following receives privacy protection under the Fourth Amendment against police intrusion: the garbage one has left outside the curb of one's home (in part because one has consensually "shared" the garbage with the garbage collector and thereby effectively waived any interest in its privacy); the secrets one confides in a close friend who is actually an undercover police officer wearing a wire and electronic transmitter (because one has consensually "shared" one's confidences with a perceived friend); and -- most significant to the legality of the NSA's surveillance -- the phone numbers that one calls from one's telephone (because one has consensually "shared" that information with the telephone company).
In each of these examples and many others, the person in question could not really function in the world without "sharing" information or visual access to one's life to someone, a third party -- whether a close friend or a business whose services one needs. Yet the Court has often treated such life-enhancing (or life-necessitating) sharing as a waiver of one's privacy against police intrusions into the private areas of one's life.
It is true, of course, that if one broadcasts information or visual (or audio) access to one's life to "everyone" (for example, by yelling secrets across a crowded street), then police invade no reasonable expectation of privacy by also listening in. However, individuals sometimes choose to share their privacy in a less indiscriminate manner, much as people decide to have consensual sex with some but not other individuals. For police to treat such limited exposures as a relinquishment of privacy from government surveillance shares something in common with the decision to treat "promiscuous" women as subject to lawful harassment or worse.
Ultimately, for the law to show respect for an individual's right to say no (i.e., the right to privacy against unwanted intrusions), it must show due regard for the same individual's right to say yes to some intrusions and nonetheless retain the option of saying no to others. In that way, the options of consent and non-consent are intimately linked, and there truly is an autonomy interest (even as the Court perhaps opportunistically invokes it in Fernandez) in deciding when one wishes to share one's most private spaces with others, of one's own free will.
Monday, March 03, 2014
On Discovering a Personal Connection to Ukraine
By Mike Dorf
In the late 19th century, all of my great-grandparents came to the United States from the area around the city of Lvov, in Galicia, a region that has traded hands among various nations over the centuries. Historically part of Poland, when my great-grandparents left, Lvov was officially known as Lemberg, as it had been part of the Austro-Hungarian Empire since the late 18th century. Today, Lvov is Lviv, a city in the west of Ukraine.
Nonetheless, until the current crisis, I had never really thought of Ukraine as my familial "old country." The descendants of nearly all of my great-grandparents' families who remained in Galicia were certainly killed by the Nazis, and although there remains a remnant of the Jewish community in Lviv, it is just a remnant. Thus, I have tended to regard events in Ukraine much in the way I regard events in other foreign countries to which I have no personal connection. I am not indifferent, but I have felt no special concern for Ukraine.
Indeed, if I am to be fully honest, I will also add that my lack of attachment to Ukraine was based in part on my understanding that many Ukrainians were willing participants in the liquidation of their Jewish neigbhors--an understanding based on reading historical accounts and many discussions with my late mother-in-law, who grew up in the same region as my own ancestors (in the town of Stryi, just to the south of Lvov), and survived the Holocaust, even as nearly all of her family was killed. Of course I don't blame the children and grandchildren for the sins of the parents and the grandparents, but because Ukraine--as part of the Soviet Union--never underwent the sort of soul-searching that (West) Germans did after the war, the old attitudes survived longer in the east, or at least so I had come to believe.
Without denying that antisemitism remains a potent force even in areas that were made nearly "Judenrein" by Hitler, I have learned in recent days that the Ukrainian revolution that (for now) toppled Yanukovych was in fact multi-ethnic--and that even as the Kremlin describes the new government in Kiev as "fascist" and "Nazi", it was in fact chiefly the ancien regime that sought to exploit antisemitism. Writing in The New York Review of Books, Timothy Snyder provides an eye-opening description that paints the revolution in Kiev as essentially liberal democratic, and the Russian reaction as fundamentally authoritarian. David Remnick makes complementary points about Putin's intentions in The New Yorker.
Writing for a blog that reaches as many sophisticated readers as DoL reaches is a great privilege, but it can sometimes feel like a burden. When something important happens, I feel an obligation to say something--preferably something that I know at least a little bit about. In thinking about the situation in Crimea and the rest of Ukraine, I asked myself whether I had anything special to contribute. I thought about writing a post in which I would argue that the tendency of the United States to invade other countries in violation of international law (see, e.g, GW Bush, Iraq) undermined our leaders' ability to criticize other countries for the same behavior. Yet that seems mostly beside the point.
To be sure, I suppose that the posture of America and the West since the fall of the Berlin Wall has tended to reinforce the Kremlin's fears of encirclement, and some of that Western posture has consisted of making nearby war in violation of international law (see, e.g., Clinton/NATO, Kosovo). But if the question is whether Putin would have hesitated to take the steps he is now taking if the U.S. and the West had greater credibility on the legal issues, I think the answer is clearly no. Questions of international law have played the same role here as they played in Hungary in 1956, in Czechoslovakia in 1967, and in Georgia in 2008. That is to say, none.
And so, without a point to make about the law, I am left to state an expression of solidarity. Snyder asks the following question about the Kiev Revolution:
When JFK said "ich bin ein Berliner", he was expressing solidarity, not threatening military action in what was understood to be the Soviet sphere of influence. The least we can do now is to express the same. So for me, for the first time, and at least for the time being, I'll say: Я український.
In the late 19th century, all of my great-grandparents came to the United States from the area around the city of Lvov, in Galicia, a region that has traded hands among various nations over the centuries. Historically part of Poland, when my great-grandparents left, Lvov was officially known as Lemberg, as it had been part of the Austro-Hungarian Empire since the late 18th century. Today, Lvov is Lviv, a city in the west of Ukraine.
Nonetheless, until the current crisis, I had never really thought of Ukraine as my familial "old country." The descendants of nearly all of my great-grandparents' families who remained in Galicia were certainly killed by the Nazis, and although there remains a remnant of the Jewish community in Lviv, it is just a remnant. Thus, I have tended to regard events in Ukraine much in the way I regard events in other foreign countries to which I have no personal connection. I am not indifferent, but I have felt no special concern for Ukraine.
Indeed, if I am to be fully honest, I will also add that my lack of attachment to Ukraine was based in part on my understanding that many Ukrainians were willing participants in the liquidation of their Jewish neigbhors--an understanding based on reading historical accounts and many discussions with my late mother-in-law, who grew up in the same region as my own ancestors (in the town of Stryi, just to the south of Lvov), and survived the Holocaust, even as nearly all of her family was killed. Of course I don't blame the children and grandchildren for the sins of the parents and the grandparents, but because Ukraine--as part of the Soviet Union--never underwent the sort of soul-searching that (West) Germans did after the war, the old attitudes survived longer in the east, or at least so I had come to believe.
Without denying that antisemitism remains a potent force even in areas that were made nearly "Judenrein" by Hitler, I have learned in recent days that the Ukrainian revolution that (for now) toppled Yanukovych was in fact multi-ethnic--and that even as the Kremlin describes the new government in Kiev as "fascist" and "Nazi", it was in fact chiefly the ancien regime that sought to exploit antisemitism. Writing in The New York Review of Books, Timothy Snyder provides an eye-opening description that paints the revolution in Kiev as essentially liberal democratic, and the Russian reaction as fundamentally authoritarian. David Remnick makes complementary points about Putin's intentions in The New Yorker.
Writing for a blog that reaches as many sophisticated readers as DoL reaches is a great privilege, but it can sometimes feel like a burden. When something important happens, I feel an obligation to say something--preferably something that I know at least a little bit about. In thinking about the situation in Crimea and the rest of Ukraine, I asked myself whether I had anything special to contribute. I thought about writing a post in which I would argue that the tendency of the United States to invade other countries in violation of international law (see, e.g, GW Bush, Iraq) undermined our leaders' ability to criticize other countries for the same behavior. Yet that seems mostly beside the point.
To be sure, I suppose that the posture of America and the West since the fall of the Berlin Wall has tended to reinforce the Kremlin's fears of encirclement, and some of that Western posture has consisted of making nearby war in violation of international law (see, e.g., Clinton/NATO, Kosovo). But if the question is whether Putin would have hesitated to take the steps he is now taking if the U.S. and the West had greater credibility on the legal issues, I think the answer is clearly no. Questions of international law have played the same role here as they played in Hungary in 1956, in Czechoslovakia in 1967, and in Georgia in 2008. That is to say, none.
And so, without a point to make about the law, I am left to state an expression of solidarity. Snyder asks the following question about the Kiev Revolution:
Has it ever before happened that people associated with Ukrainian, Russian, Belarusian, Armenian, Polish, and Jewish culture have died in a revolution that was started by a Muslim? Can we who pride ourselves in our diversity and tolerance think of anything remotely similar in our own histories?Understandably not wanting to bring about nuclear armageddon, neither the U.S. nor the E.U. will provide direct military support to Ukraine. In such circumstances, perhaps the most we can do is to stand with the Ukrainians who began this revolution. In time--and perhaps already--their revolution will take on a nationalist tinge, with all of the associated ugliness. But that will mostly be an effect of the Russian intervention, not its cause.
When JFK said "ich bin ein Berliner", he was expressing solidarity, not threatening military action in what was understood to be the Soviet sphere of influence. The least we can do now is to express the same. So for me, for the first time, and at least for the time being, I'll say: Я український.
The Problem of Retirement As a Window Into the Incoherence of Orthodox Economics
-- Posted by Neil H. Buchanan
[Note: My Dorf on Law post this past Friday, in which I examined the rhetorical power of invocations of slavery in public policy debates, discussed the film "12 Years a Slave" at some length. I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie at last night's gala. Indeed, I had forgotten all about the Oscars. In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.]
My most recent Verdict column, published last Thursday, asks if "conservatives really want people never to retire." Obviously, I am not claiming to have heard any conservatives say that they do not want people to be able to retire. Instead, I argue that the inevitable logical extension of their arguments must be either that they do not want anyone to be able to retire, or perhaps that they only want people who are wealthy to be able to retire.
That is, I am not asking, "Can conservatives really mean it when they say that they do not want people to be able to retire?" but rather, "Don't conservative arguments naturally imply that people would not be able to retire, even though conservatives have never said so, and even if they would be uncomfortable with that implication?" My column shows that, applying standard orthodox economic reasoning, conservatives' logic would, indeed, seem to lead to that unexpected conclusion.
In the recent squabble over whether "Obamacare will kill 2.5 million jobs," a prominent conservative economist was horrified when liberals applauded estimates that some people would be "unlocked" from their jobs by the availability of health care coverage through the Affordable Care Act (ACA). The Congressional Budget Office had published estimates that, by 2023, people might choose to reduce their labor supply in an amount aggregating to 2.5 million fewer worker-years of work.
This reduction in labor supply would be the result of some unspecified (and unknown, because the economic model used to generate the estimate cannot provide the specific amounts) combination of people working fewer hours because of a fear of losing health-care subsidies due to income phaseouts, moving among jobs because people no longer need to stick with a bad job merely to hold onto good (or any) health insurance, or retiring early from jobs because they will no longer need to wait until age 65 to qualify for something like Medicare.
It is that final category (early retirement by physically beaten-down people, who will no longer need to continue to harm themselves by hanging onto jobs because of the medical benefits) that provides the point of departure in my column. Looking at that category in particular, liberals have said, "And that's good!" That is, we asked why it would not be a good thing for people to exercise their free choice to end their participation in the paid work force. The ACA makes it possible to do so, by giving people a broader range of choices than they faced prior to the ACA's enactment. Conservatives said, in essence, that liberals were wrongly celebrating a distortion in the labor market. That is, these additional people will only be able to retire because of the ACA, and the ACA is a government policy that distorts the labor market, so those people should not be able to retire.
As always, the "should" in the previous sentence raises a red flag, because orthodox economists' obsessive desire to maintain their scientific veneer requires them ritualistically to deny that they have anything to say about normative matters. They might (or might not) be able to stop themselves from saying that the increased early retirements are bad, but they can at least claim that the change in the labor market will be inefficient, leaving it to the listener to draw the obvious normative implication. Maybe, these economists will grudgingly allow, the proverbial "philosophers and politicians" will conclude that there are moral (or simply unprincipled) reasons to tolerate the economic inefficiency that the ACA will surely cause, but the orthodox economic view is that the shift in labor supply is surely evidence of the ACA's economic inefficiency.
As I argue in my column, however, that reaction by conservatives exposes their opportunistic use of the pre-ACA laws as the correct standard of comparison in determining whether a policy is efficient or inefficient. If the reduction in labor supply is presumptively inefficient, then these economists must have silently assumed that the labor supply without the ACA is efficient. Or, at the very least, they must be assuming that reducing labor supply moves us in the wrong direction, even further away from some other hypothetical efficient equilibrium, from which real-world policies that have been enacted by stupid politicians have already moved us.
At this point, however, we start pulling on the thread of what it means to have a hypothetical standard of comparison that represents the "no government intervention" world so dearly loved by conservatives. If their argument is that people should not be able to rely on provisions of the ACA to retire -- and note that I am deliberately dropping the pretense that they are not really saying "should" and "should not" in their pronouncements -- then what should people be allowed to rely upon in their retirement?
Surely, they cannot be allowed to rely on Social Security or Medicare (and definitely not Medicaid, which is means-tested). "Get your government hands off my Medicare!" is still one of the most revealing moments of ignorance in recent political history, but it was not merely one confused retiree who said it. One of the most celebrated conservative economists once said: "[J}ust wait till you see Medicare, Medicaid, and health care done by the government."
But the government's retirement programs are not the only things that are out of the picture, in terms of constructing a hypothetical standard of comparison to determine whether a reduction in labor supply is efficient (moving toward that hypothetical standard) or inefficient (moving in the opposite direction). Government-subsidized retirement savings plans like 401(k)'s are out, because those tax code-based subsidies, by the logic of orthodox economics, would presumptively move the economy away from the efficient amount of saving toward a world with too much saving.
But then, any amount of saving (other than storing physical commodities in fallout shelters) is only going to be possible if financial institutions are forced to honor their legal commitments, by a government that defines and enforces laws of contract that are not given by God. Certainly, there can be no government-provided deposit insurance, protecting depositors against bank runs. Pushing the logic yet a further step back, the money that would be deposited into those government-protected accounts would have to come from one of two sources, either (1) the fruits of one's labor, the wages of which have been paid in full because the government has made it clear that it will enforce at least the most minimal labor laws (unpaid labor being theft, after all), or (2) the proceeds of inheritances and gifts, which exist only due to property laws, estate laws, and so on.
I am, of course, now talking about the familiar "baseline question" that I have discussed frequently here on this blog. This discussion, however, helps to clarify some confusion in academic discussions about the required role of government in making economic activity possible. Frequently, people will say that this is "the Murphy/Nagel point," referring to an already-classic 2002 book by the NYU philosophers Liam Murphy and Thomas Nagel, The Myth of Ownership. Indeed, I have made that error in casual conversation myself.
In fact, Murphy and Nagel's innovation was not the observation that economic activity is only possible when a government exists. Economists of earlier generations (that is, economists who had not yet completely bought into the current orthodoxy, but instead were willing to think more broadly) were fully aware of the absurdity of talking about "no-government worlds," or "states of nature" where economic activity magically took place without government-created and -enforced rules. Early legal realists were aware of this as well. Neither Murphy nor Nagel would claim to have been the first to make this point.
Their argument was that the logical absurdity of talking about a no-government world makes it logically incoherent to talk about (much less measure) "before-tax income." That is, because there is no economy without a government, and there can be no government (even a minimalist one) without tax revenue, it is not meaningful to ask how much money a person would receive as a result of market transactions, if there were no taxes being collected. Because different tax laws will change economic behavior in different ways, measurements of pre-tax income will differ, depending upon how the government is presumed to be collecting the money necessary to allow economic activity to proceed in the first place.
This is why so much of the discussion in the Murphy/Nagel book is directed against "street libertarianism," with its claims (by people like George W. Bush) that "government should let people keep their money." Ownership is a myth, after all, because we cannot know what is ours until the government's laws (including tax laws) have been put into effect, and differing versions of those laws -- each of which is as "natural" as any other -- will result in different people owning different things.
When I talk about the "baseline problem," I proceed from the same premise, but I am making a different point. Because there are no pre-political arrangements of economic endowments, there can be no meaningful way to define "efficiency" in the orthodox economic sense. Orthodox economics, after all, must have a baseline against which to compare the real-world outcomes that we actually experience. If we cannot define what is efficient (even theoretically), then we cannot know what is inefficient, or even what is more efficient or less efficient.
I first discussed the baseline problem, without using that label, in 1998, in a draft of an article that was not ultimately published until 2005, as a book chapter under the title "Playing With Fire: Feminist Legal Theorists and the Tools of Economics." Like Murphy and Nagel, I would never claim to have been the first to notice that there is no such thing as a no-government world. Like them, I am working from that premise to undermine a political claim that has been cloaked in apolitical garb. In my case, the claim in question is that there is a way to know that people's responses to a change in policy can meaningfully be condemned as inefficient. (I also do not claim to be the only person ever to have made this basic claim about efficiency. I do think that I am extending it in some new, and hopefully useful, ways.)
To summarize: Murphy and Nagel use the "no state of nature without government" premise to make a point about taxes, while I use that same premise to make a point about economic efficiency.
Because this post is already far too long, I will stop here. In a future post (or, more likely, in a series of future posts), I plan to explore the question of whether there are meaningful ways, short of a fully specified baseline, to compare two policies (or two states of the world), and call one more efficient than the other. That, it turns out, is a very difficult question.
For now, however, we can at least stop to enjoy the moment when a top-line conservative economist inadvertently revealed how meaningless is the notion of efficiency. If the ACA is bad (or inefficient) because it will change people's decisions in the marketplace, then everything is bad/inefficient. But then nothing is good or efficient, except whatever it is that might serve the political purpose of that economist and his comrades in Congress.
[Note: My Dorf on Law post this past Friday, in which I examined the rhetorical power of invocations of slavery in public policy debates, discussed the film "12 Years a Slave" at some length. I did not know as I wrote that post, of course, that the Best Picture Oscar would be awarded to that movie at last night's gala. Indeed, I had forgotten all about the Oscars. In any event, even though the award was not necessary to validate what is one of the most important films of recent years, it was a well deserved recognition of a powerful achievement.]
My most recent Verdict column, published last Thursday, asks if "conservatives really want people never to retire." Obviously, I am not claiming to have heard any conservatives say that they do not want people to be able to retire. Instead, I argue that the inevitable logical extension of their arguments must be either that they do not want anyone to be able to retire, or perhaps that they only want people who are wealthy to be able to retire.
That is, I am not asking, "Can conservatives really mean it when they say that they do not want people to be able to retire?" but rather, "Don't conservative arguments naturally imply that people would not be able to retire, even though conservatives have never said so, and even if they would be uncomfortable with that implication?" My column shows that, applying standard orthodox economic reasoning, conservatives' logic would, indeed, seem to lead to that unexpected conclusion.
In the recent squabble over whether "Obamacare will kill 2.5 million jobs," a prominent conservative economist was horrified when liberals applauded estimates that some people would be "unlocked" from their jobs by the availability of health care coverage through the Affordable Care Act (ACA). The Congressional Budget Office had published estimates that, by 2023, people might choose to reduce their labor supply in an amount aggregating to 2.5 million fewer worker-years of work.
This reduction in labor supply would be the result of some unspecified (and unknown, because the economic model used to generate the estimate cannot provide the specific amounts) combination of people working fewer hours because of a fear of losing health-care subsidies due to income phaseouts, moving among jobs because people no longer need to stick with a bad job merely to hold onto good (or any) health insurance, or retiring early from jobs because they will no longer need to wait until age 65 to qualify for something like Medicare.
It is that final category (early retirement by physically beaten-down people, who will no longer need to continue to harm themselves by hanging onto jobs because of the medical benefits) that provides the point of departure in my column. Looking at that category in particular, liberals have said, "And that's good!" That is, we asked why it would not be a good thing for people to exercise their free choice to end their participation in the paid work force. The ACA makes it possible to do so, by giving people a broader range of choices than they faced prior to the ACA's enactment. Conservatives said, in essence, that liberals were wrongly celebrating a distortion in the labor market. That is, these additional people will only be able to retire because of the ACA, and the ACA is a government policy that distorts the labor market, so those people should not be able to retire.
As always, the "should" in the previous sentence raises a red flag, because orthodox economists' obsessive desire to maintain their scientific veneer requires them ritualistically to deny that they have anything to say about normative matters. They might (or might not) be able to stop themselves from saying that the increased early retirements are bad, but they can at least claim that the change in the labor market will be inefficient, leaving it to the listener to draw the obvious normative implication. Maybe, these economists will grudgingly allow, the proverbial "philosophers and politicians" will conclude that there are moral (or simply unprincipled) reasons to tolerate the economic inefficiency that the ACA will surely cause, but the orthodox economic view is that the shift in labor supply is surely evidence of the ACA's economic inefficiency.
As I argue in my column, however, that reaction by conservatives exposes their opportunistic use of the pre-ACA laws as the correct standard of comparison in determining whether a policy is efficient or inefficient. If the reduction in labor supply is presumptively inefficient, then these economists must have silently assumed that the labor supply without the ACA is efficient. Or, at the very least, they must be assuming that reducing labor supply moves us in the wrong direction, even further away from some other hypothetical efficient equilibrium, from which real-world policies that have been enacted by stupid politicians have already moved us.
At this point, however, we start pulling on the thread of what it means to have a hypothetical standard of comparison that represents the "no government intervention" world so dearly loved by conservatives. If their argument is that people should not be able to rely on provisions of the ACA to retire -- and note that I am deliberately dropping the pretense that they are not really saying "should" and "should not" in their pronouncements -- then what should people be allowed to rely upon in their retirement?
Surely, they cannot be allowed to rely on Social Security or Medicare (and definitely not Medicaid, which is means-tested). "Get your government hands off my Medicare!" is still one of the most revealing moments of ignorance in recent political history, but it was not merely one confused retiree who said it. One of the most celebrated conservative economists once said: "[J}ust wait till you see Medicare, Medicaid, and health care done by the government."
But the government's retirement programs are not the only things that are out of the picture, in terms of constructing a hypothetical standard of comparison to determine whether a reduction in labor supply is efficient (moving toward that hypothetical standard) or inefficient (moving in the opposite direction). Government-subsidized retirement savings plans like 401(k)'s are out, because those tax code-based subsidies, by the logic of orthodox economics, would presumptively move the economy away from the efficient amount of saving toward a world with too much saving.
But then, any amount of saving (other than storing physical commodities in fallout shelters) is only going to be possible if financial institutions are forced to honor their legal commitments, by a government that defines and enforces laws of contract that are not given by God. Certainly, there can be no government-provided deposit insurance, protecting depositors against bank runs. Pushing the logic yet a further step back, the money that would be deposited into those government-protected accounts would have to come from one of two sources, either (1) the fruits of one's labor, the wages of which have been paid in full because the government has made it clear that it will enforce at least the most minimal labor laws (unpaid labor being theft, after all), or (2) the proceeds of inheritances and gifts, which exist only due to property laws, estate laws, and so on.
I am, of course, now talking about the familiar "baseline question" that I have discussed frequently here on this blog. This discussion, however, helps to clarify some confusion in academic discussions about the required role of government in making economic activity possible. Frequently, people will say that this is "the Murphy/Nagel point," referring to an already-classic 2002 book by the NYU philosophers Liam Murphy and Thomas Nagel, The Myth of Ownership. Indeed, I have made that error in casual conversation myself.
In fact, Murphy and Nagel's innovation was not the observation that economic activity is only possible when a government exists. Economists of earlier generations (that is, economists who had not yet completely bought into the current orthodoxy, but instead were willing to think more broadly) were fully aware of the absurdity of talking about "no-government worlds," or "states of nature" where economic activity magically took place without government-created and -enforced rules. Early legal realists were aware of this as well. Neither Murphy nor Nagel would claim to have been the first to make this point.
Their argument was that the logical absurdity of talking about a no-government world makes it logically incoherent to talk about (much less measure) "before-tax income." That is, because there is no economy without a government, and there can be no government (even a minimalist one) without tax revenue, it is not meaningful to ask how much money a person would receive as a result of market transactions, if there were no taxes being collected. Because different tax laws will change economic behavior in different ways, measurements of pre-tax income will differ, depending upon how the government is presumed to be collecting the money necessary to allow economic activity to proceed in the first place.
This is why so much of the discussion in the Murphy/Nagel book is directed against "street libertarianism," with its claims (by people like George W. Bush) that "government should let people keep their money." Ownership is a myth, after all, because we cannot know what is ours until the government's laws (including tax laws) have been put into effect, and differing versions of those laws -- each of which is as "natural" as any other -- will result in different people owning different things.
When I talk about the "baseline problem," I proceed from the same premise, but I am making a different point. Because there are no pre-political arrangements of economic endowments, there can be no meaningful way to define "efficiency" in the orthodox economic sense. Orthodox economics, after all, must have a baseline against which to compare the real-world outcomes that we actually experience. If we cannot define what is efficient (even theoretically), then we cannot know what is inefficient, or even what is more efficient or less efficient.
I first discussed the baseline problem, without using that label, in 1998, in a draft of an article that was not ultimately published until 2005, as a book chapter under the title "Playing With Fire: Feminist Legal Theorists and the Tools of Economics." Like Murphy and Nagel, I would never claim to have been the first to notice that there is no such thing as a no-government world. Like them, I am working from that premise to undermine a political claim that has been cloaked in apolitical garb. In my case, the claim in question is that there is a way to know that people's responses to a change in policy can meaningfully be condemned as inefficient. (I also do not claim to be the only person ever to have made this basic claim about efficiency. I do think that I am extending it in some new, and hopefully useful, ways.)
To summarize: Murphy and Nagel use the "no state of nature without government" premise to make a point about taxes, while I use that same premise to make a point about economic efficiency.
Because this post is already far too long, I will stop here. In a future post (or, more likely, in a series of future posts), I plan to explore the question of whether there are meaningful ways, short of a fully specified baseline, to compare two policies (or two states of the world), and call one more efficient than the other. That, it turns out, is a very difficult question.
For now, however, we can at least stop to enjoy the moment when a top-line conservative economist inadvertently revealed how meaningless is the notion of efficiency. If the ACA is bad (or inefficient) because it will change people's decisions in the marketplace, then everything is bad/inefficient. But then nothing is good or efficient, except whatever it is that might serve the political purpose of that economist and his comrades in Congress.
Friday, February 28, 2014
The Provocative Rhetorical Power of Slavery in Policy Analysis
-- Posted by Neil H. Buchanan
My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago). On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.
Today, however, I want to take a bit of a detour. In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument. Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.
We can, I think, stipulate that there are situations in which the slavery example is directly implicated. If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely. Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era. But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.
The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one. For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation."
That is a powerful example, and it explicates Professor Dorf's point well. One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach. Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized. Again, I think Professor Dorf's use of the analogy easily passes this test. He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point. One could, however, imagine another author being less careful.
In fact, I might be an example of that less-careful kind of author. In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out. I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.
Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point. I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis. Unfortunately, the impact of that example is possibly too great. As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case. What else ya got?"
As frustrating as that reaction was, I do understand it. Seen in all of its horrors, slavery is uniquely awful. During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way. Finally, one student said, "We need to remember that nothing is like slavery." He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.
Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes). The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude. Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes. The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.
Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt. This argument, moreover, has what would generally count as an impressive academic pedigree. The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."
When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government. That is, if one does not want to pay taxes, one is "free" not to earn an income. Admittedly, that might sound flippant. Am I really saying that the choice is to work for the government or to live in a hut? That is hardly better than forced labor!
The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself. There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me." The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract. Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem. One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.
Again, however, this argument concedes far too much. This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen. That film emphatically makes the point that my student made last Fall: Nothing is like slavery. In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well. The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization. There are no rules, and there need be no explanations. Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.
About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation." The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income. Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach. This became known among tax scholars as "enslaving the beachcomber."
One can understand the greater allure of the slavery analogy here. Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes). The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.
But come on! She would not be forced to work for a particular law firm, or in a particular city. In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes. She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on. She would not be whipped, raped, or separated from her children.
These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery." Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.
Slavery, too, holds the power to distort rational discussion. My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery. If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point. But I get it. For good reasons, people respond to the use of slavery as an example with trepidation. There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually. It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.
My new Verdict column, published yesterday, is mostly devoted to an extension of my analysis of the "baseline problem" (which I also discussed in a Dorf on Law post two weeks ago). On Monday, I will publish a post that summarizes that column, and that further develops the core of my argument.
Today, however, I want to take a bit of a detour. In yesterday's column, as I will explain below, I struggled with how to use the example of slavery to further my argument. Based on my difficulty in using that example, I have been thinking about the great potency of references to slavery in modern policy discourse, and why that power is problematic, in ways that merit further scrutiny.
We can, I think, stipulate that there are situations in which the slavery example is directly implicated. If, for example, one were to note that United States history includes prominent examples of shameful policies, it would be strange indeed if slavery did not lead the list -- and it would be outright suspicious if it were omitted from the list entirely. Along with internment of Japanese-American citizens during WWII, and other race-related policies and legal decisions (Jim Crow, Plessy), we would add to the list the disenfranchisement of women for over a century of our history, the continuing failure to address gender-, class-, and race-related economic and social inequality, and we might add Lochner as well as the anti-labor policies of the early industrial era. But slavery is clearly the leading example of national shame, and talking about it in that context would be essential.
The next category might be thought of as conversations in which slavery is one of many pertinent, illustrative examples, but not a necessary one. For example, earlier this week, in a post about the right's "religious freedom" political strategy, Professor Dorf wrote: "By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation."
That is a powerful example, and it explicates Professor Dorf's point well. One could imagine him choosing a different example (although I cannot think of any), but mentioning slavery there was anything but a reach. Even so, we are already treading into territory where one starts to become a bit nervous, because once slavery is part of an analogy -- X is "like slavery" in one way or another -- then we must take great care to be sure that slavery is not somehow trivialized. Again, I think Professor Dorf's use of the analogy easily passes this test. He uses a powerful example, but not in a way that uses the uniqueness of slavery to exaggerate the power of his actual point. One could, however, imagine another author being less careful.
In fact, I might be an example of that less-careful kind of author. In my Verdict column today, I describe the difficulty that I have faced in trying to explain how the notion of economic efficiency is contingent on the laws under which economic activity is carried out. I have, at various times, made the point that abolishing slavery would be inefficient (under the standard economic analysis), in a world where slavery is legal, while enacting a slavery regime would be inefficient, in a world where slavery was not currently legal.
Although that example is correct and directly pertinent, it is only one of an uncountable number of examples that could be mustered to make the same point. I have deliberately used the slavery example to convince people that the stakes in economic efficiency analysis are anything but boring or sterile, but rather that human freedom itself can be implicated by the analysis. Unfortunately, the impact of that example is possibly too great. As I noted in my column, one smart and well-meaning person has told me that his reaction to my example was: "All right, so slavery is always a special case. What else ya got?"
As frustrating as that reaction was, I do understand it. Seen in all of its horrors, slavery is uniquely awful. During my Tax Policy Seminar last semester, the discussion at one point slipped into some casual (but not ill-spirited) opining about how some policy or another was "like slavery" in some meaningful way. Finally, one student said, "We need to remember that nothing is like slavery." He reminded his fellow students (and me) that slavery was far more than forced labor without pay, extending to grotesque violence and the complete dehumanization of the people who were enslaved.
Early in each semester, I discuss in my basic tax law course the "tax protester" arguments against the legality of the federal income tax (and, for that matter, all taxes). The low/high point of that discussion each term is when I note the protesters' claim that the federal income tax violates the 13th Amendment's abolition of slavery and involuntary servitude. Part of that argument (if one can call it an argument) is surely based on the idea promulgated by a prominent right-wing anti-tax group, which annually announces the day on which people are "free" from taxes. The idea is that, if taxes were to add up to, say, 25% of one's gross annual income, then somehow one spends the first three months of the year "working for Uncle Sam," and then after March 31, one is "free" to work for one's own benefit.
Although the think-tank that promotes that nonsense does not go so far as to join the tax protesters in their misapprehension of the 13th Amendment, the idea of being free to work for oneself, versus being in the servitude of others, is clearly what animates that annual public relations stunt. This argument, moreover, has what would generally count as an impressive academic pedigree. The conservative philosopher Robert Nozick described income taxes as being "on a par with forced labor," because it forces a "person to work n hours for another’s purpose."
When I discuss that argument in class each semester, I generally roll my eyes (because, among other things, most of the students are already laughing in disbelief, even as I describe the protesters' offensive analogy to the 13th Amendment), and then I try to say something substantive by pointing out that no one is forced to work for the government. That is, if one does not want to pay taxes, one is "free" not to earn an income. Admittedly, that might sound flippant. Am I really saying that the choice is to work for the government or to live in a hut? That is hardly better than forced labor!
The deeper point, however, is that if one does choose to work for an income, one is still not being forced to work for the government rather than oneself. There is no time during which one is not working for oneself -- "First, I work 3 minutes for you, then I work 9 minutes for me." The existence of taxes simply changes the terms of the labor exchange, where one ends up not earning as much as one might have thought from looking at the top-line number on the labor contract. Each minute that one works, one is working for oneself, to receive a wage that is not as high as the gross wage would make it seem. One can argue at length about whether taxes are too high or low, but they are certainly not involuntary servitude.
Again, however, this argument concedes far too much. This semester, when we reached that point on the syllabus, I had just seen "12 Years a Slave," a brilliant film that depicted the horrors of slavery in ways that I had never before seen. That film emphatically makes the point that my student made last Fall: Nothing is like slavery. In last month's Harper's, J. Hoberman offers a moving review essay discussing "12 Years a Slave" (here, unfortunately behind a paywall), which emphatically made that point as well. The essay's title, "Here There Is No Why," hauntingly captures the completeness of slavery's dehumanization. There are no rules, and there need be no explanations. Things happen, because other people make them happen -- and those people are able to make them happen with the imprimatur of a state that treats slaves as non-people.
About ten years ago, there was a brief flurry of activity among tax policy scholars regarding "endowment taxation." The idea was that there might be efficiency-based reasons (which end up being too ridiculous to summarize here) to tax people not on their income, but on their potential income. Under such a system, a person who could be working as a Wall Street lawyer, earning $2 million per year, would be taxed on that amount, even if she had decided to quit her job and live on the beach. This became known among tax scholars as "enslaving the beachcomber."
One can understand the greater allure of the slavery analogy here. Unlike Nozick's argument about income taxes, which ultimately relies on a false segregation of working time into "free time" and "forced time," an endowment tax could essentially prevent a person from quitting a high-paying job (unless she had savings from which she could pay her taxes). The former lawyer might be "forced" by such a tax system to return to lawyering, which would be an impingement on her liberty.
But come on! She would not be forced to work for a particular law firm, or in a particular city. In fact, she would not necessarily even have to practice law, if there were non-law jobs that she would prefer that would pay enough to cover her taxes. She would remain free to marry whom she wished (SSM issues very much acknowledged here), to live where she wished (within the constraints that all of us face, given economic realities in our lives), to travel on vacations, and so on. She would not be whipped, raped, or separated from her children.
These powerful images are important to bear in mind, no matter how uncomfortable they are, because it is essential to remember what it means to casually call something "like slavery." Something called "Godwin's Law" holds that "[a]s an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1." The idea is that, no matter the subject of discussion, at some point someone will become angry or desperate enough to claim that the other side is "a bunch of Nazis," or something similar.
Slavery, too, holds the power to distort rational discussion. My example, showing how slavery can be efficient or inefficient, depending upon one's viewpoint, does not deny the awful reality of slavery. If anything, I could argue that as people think more about slavery's horrors, the idea that it can be called economically efficient only strengthens my point. But I get it. For good reasons, people respond to the use of slavery as an example with trepidation. There are too many idiots out there saying too many stupid things about slavery to imagine that this topic can be analogized casually. It is not off the table, but especially now that millions of people have been educated about what pre-Civil War slavery in the United States actually meant, using slavery as an example must be done with the greatest of care.
Wednesday, February 26, 2014
Arizona SB 1062 Post-Mortem: Statewide, It Would Chiefly Have Licensed Sex Discrimination. That's Right, Sex Discrimination.
By Mike Dorf
In vetoing Arizona SB 1062, Governor Brewer pointed to its possible "unintended and negative consequences." I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex. That's right, sex. Not sexual orientation. Or at least not mostly sexual orientation. Let me explain.
As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots. Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that in the future the Arizona legislature would provide protection against sexual orientation discrimination, but of course a future Arizona legislature could also repeal or modify the religion exception, so if that was their worry, their remedy was pretty weak.
Moreover, as I explained in my Verdict column earlier in the week, if federal anti-discrimination law were amended to provide protection against private sexual orientation discrimination, then an Arizona exception for religiously motivated discrimination would be ineffective under the Supremacy Clause. To be sure, it might not be needed even there, depending on how broadly or narrowly the courts construe the federal RFRA, but at least for now, SB 1062 looked like it would have provided broader exceptions than the federal RFRA.
Thus, the question arises: Would SB 1062 have provided exceptions to any state law? By common law and by its state constitution, Arizona treats some businesses as common carriers with obligations to serve the general public, presumably including gay people. SB 1062 also would have provided exceptions to local ordinances, like the Phoenix one, that included sexual orientation on the list of forbidden grounds for discrimination.
But what about at the statewide level? There, the real bite of SB 1062 would have been with respect to antidiscrimination law that applies to most or all businesses. So, are there categories of discrimination that are forbidden by Arizona law but permitted by federal law, such that SB 1062 would have broadened the exception to them? I did a little research and found that the answer is yes.
Federal civil rights law forbids discrimination in public accommodations "on the grounds of race, color, religion, or national origin." Arizona civil rights law forbids discrimination in public accommodations "because of race, color, religion, sex, national origin or ancestry." Did you see that? Arizona law, but not federal law, forbids discrimination in public accommodations based on sex and ancestry. Let's put ancestry aside because nearly all actionable ancestry discrimination will already be covered by one of the other categories. That leaves sex discrimination as the one category of discrimination in public accommodations banned by Arizona state law but not federal law.
My first thought on making this discovery was "Really?" It doesn't violate federal law for a restaurant to keep out female customers? Holy crap! Why didn't I know that?
Other than inexcusable ignorance on my part, the answer is that state public accommodations laws tend to apply to a bigger list of proscribed categories of discrimination than federal public accommodations law does. And that's true of Arizona too. Under current law, a Phoneix Hooters can't keep out women.
SB 1062 would have changed that, at least for a Hooters (or other business) owned by a religious sexist. A business owned by someone who thought it unGodly to serve women wearing pants, or to serve women with uncovered hair, would have been sheltered by SB 1062.
Was that sort of "unexpected consequence" a realistic scenario? Maybe. Charges of sex discrimination in public accommodations do arise from time to time. Moreover, given the tendency of religions to regulate gender relations, it's not hard to imagine a case in which a religious objection would ground refusal to comply with the sex discrimination prohibition.
Now it's important to remember that SB 1062 would have taken the form of an expansion of Arizona's RFRA, which, like the federal RFRA, allows for the application of laws that substantially burden religious freedom, so long as the laws satisfy strict scrutiny. If SB 1062 had gone into law, would the Arizona courts have said that the state's interest in sex equality trumps religious freedom? Maybe, but there's no guarantee.
After all, the same strict scrutiny test applied (as a matter of expressive association under the First Amendment) in Boy Scouts of America v. Dale; yet there the SCOTUS casually dismissed the idea that an equality interest satisfied strict scrutiny. There are differences in context, to be sure, but the very idea of religious exceptions to civil rights statues appears to imply that sometimes the equality norm will fail to overcome the religious objection.
So, although they may not realize it, the women of Arizona (and for that matter the men, who also could have been denied service based on their sex under SB 1062) owe Governor Brewer thanks.
[NB: This is a revised version of the post, to take account of local ordinances. Thanks to Garrett Epps.]
In vetoing Arizona SB 1062, Governor Brewer pointed to its possible "unintended and negative consequences." I've been thinking about those consequences and I came to a surprising conclusion: If SB 1062 had been enacted, its chief statewide effect--indeed possibly its only statewide effect--would have been to create a religious right of businesses to discriminate on the basis of sex. That's right, sex. Not sexual orientation. Or at least not mostly sexual orientation. Let me explain.
As numerous commentators have noted, even without SB 1062, it is already permissible under Arizona law for private parties to discriminate on the basis of sexual orientation--even if they are merely ordinary bigots rather than religiously motivated bigots. Thus, while the intention of the sponsors of SB 1062 may have been to provide a shield for sexual orientation discrimination, at the state level that shield was not necessary. I suppose they may have worried that in the future the Arizona legislature would provide protection against sexual orientation discrimination, but of course a future Arizona legislature could also repeal or modify the religion exception, so if that was their worry, their remedy was pretty weak.
Moreover, as I explained in my Verdict column earlier in the week, if federal anti-discrimination law were amended to provide protection against private sexual orientation discrimination, then an Arizona exception for religiously motivated discrimination would be ineffective under the Supremacy Clause. To be sure, it might not be needed even there, depending on how broadly or narrowly the courts construe the federal RFRA, but at least for now, SB 1062 looked like it would have provided broader exceptions than the federal RFRA.
Thus, the question arises: Would SB 1062 have provided exceptions to any state law? By common law and by its state constitution, Arizona treats some businesses as common carriers with obligations to serve the general public, presumably including gay people. SB 1062 also would have provided exceptions to local ordinances, like the Phoenix one, that included sexual orientation on the list of forbidden grounds for discrimination.
But what about at the statewide level? There, the real bite of SB 1062 would have been with respect to antidiscrimination law that applies to most or all businesses. So, are there categories of discrimination that are forbidden by Arizona law but permitted by federal law, such that SB 1062 would have broadened the exception to them? I did a little research and found that the answer is yes.
Federal civil rights law forbids discrimination in public accommodations "on the grounds of race, color, religion, or national origin." Arizona civil rights law forbids discrimination in public accommodations "because of race, color, religion, sex, national origin or ancestry." Did you see that? Arizona law, but not federal law, forbids discrimination in public accommodations based on sex and ancestry. Let's put ancestry aside because nearly all actionable ancestry discrimination will already be covered by one of the other categories. That leaves sex discrimination as the one category of discrimination in public accommodations banned by Arizona state law but not federal law.
My first thought on making this discovery was "Really?" It doesn't violate federal law for a restaurant to keep out female customers? Holy crap! Why didn't I know that?
Other than inexcusable ignorance on my part, the answer is that state public accommodations laws tend to apply to a bigger list of proscribed categories of discrimination than federal public accommodations law does. And that's true of Arizona too. Under current law, a Phoneix Hooters can't keep out women.
SB 1062 would have changed that, at least for a Hooters (or other business) owned by a religious sexist. A business owned by someone who thought it unGodly to serve women wearing pants, or to serve women with uncovered hair, would have been sheltered by SB 1062.
Was that sort of "unexpected consequence" a realistic scenario? Maybe. Charges of sex discrimination in public accommodations do arise from time to time. Moreover, given the tendency of religions to regulate gender relations, it's not hard to imagine a case in which a religious objection would ground refusal to comply with the sex discrimination prohibition.
Now it's important to remember that SB 1062 would have taken the form of an expansion of Arizona's RFRA, which, like the federal RFRA, allows for the application of laws that substantially burden religious freedom, so long as the laws satisfy strict scrutiny. If SB 1062 had gone into law, would the Arizona courts have said that the state's interest in sex equality trumps religious freedom? Maybe, but there's no guarantee.
After all, the same strict scrutiny test applied (as a matter of expressive association under the First Amendment) in Boy Scouts of America v. Dale; yet there the SCOTUS casually dismissed the idea that an equality interest satisfied strict scrutiny. There are differences in context, to be sure, but the very idea of religious exceptions to civil rights statues appears to imply that sometimes the equality norm will fail to overcome the religious objection.
So, although they may not realize it, the women of Arizona (and for that matter the men, who also could have been denied service based on their sex under SB 1062) owe Governor Brewer thanks.
[NB: This is a revised version of the post, to take account of local ordinances. Thanks to Garrett Epps.]
Is The Right's Religious Freedom Focus a Strategic Blunder?
By Mike Dorf
Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fear that people with religious objections to same-sex marriage or to homosexuality more broadly will have to set aside those objections to comply with anti-discrimination law.
The conclusion of the column (spoiler alert!) is that the Arizona bill (whether or not signed by Gov. Brewer) underscores the need for the expansion of federal anti-discrimination law to cover sexual orientation discrimination. Under the Supremacy Clause, federal protection against sexual orientation discrimination would supersede any state exceptions. To be sure, absent an explicit proviso, even a federal statute would be subject to the federal RFRA--and there's a risk that the SCOTUS will construe the federal RFRA to provide religious exceptions for for-profit businesses in the pending cases. Indeed, even without the federal RFRA, it may not yet be possible to secure congressional legislation from Congress expanding anti-discrimination law to cover sexual orientation without including a too-broad religious exception.
But the key word in the foregoing sentence is "yet." Given the long-term trend of public opinion, it is pretty clearly only a matter of time before sexual orientation discrimination is widely regarded as odious. Yes, there will be outliers, and they may never go away. Aftet all, it's 2014 and the Russian government is employing Cossacks as paramilitary, so history is long. But even now, social conservatives in much of the country are giving up on fighting against LGBTQ equality generally, and focusing their attention on securing religious exceptions. My question for today is this: Is that focus a strategic blunder?
To contextualize that question, consider the following vastly over-simplified account of the last 60 or so years of contestation around social issues.
The first great organizing tool for the creation of the modern socially conservative right was race. From signs calling for the impeachment of Earl Warren through Nixon's Southern Strategy, the modern GOP's aging base of white Southern Christians was built on prejudice against, and fear of, African Americans. Race retains potency today, but for at least the last several decades, open appeals to racism have been outside the mainstream of national politics. For a (long) time, they were coded by discussion of crime, welfare, affirmative action, etc., and those issues have not disappeared, of course. However, race has become only one arrow in the socially conservative quiver.
With the emergence of the modern women's movement in the 1960s and 1970s, social conservative activists rallied around opposition to the ERA, but even though they won that battle, they lost the war--a result that is not especially surprising: It's hard to "other-ize" half the population when they are your own family members.
To my mind, the most effective issue--indeed the only issue with real staying power--for social conservatives, has been abortion. Opposition to legal abortion is rooted for many people in views about the proper role of women, but that's not all it's about. It is possible to think that abortion raises serious moral issues while holding generally progressive views about sex and sex roles.
Accordingly, I believe that the socially conservative right made a strategic blunder when, roughly in the early 1990s, so much of its energy was diverted into opposing LGBTQ rights. Whereas opposition to abortion can be, and I'll admit often is, justified on the ground that it aims to protect innocent vulnerable life, opposition to LGBTQ rights was and is gratuitously mean. The point has emerged clearly whenever trial courts have sought evidence that might be used to support laws banning same-sex marriage or otherwise denying basic rights to LGBTQ Americans: The laws' supporters stumble to articulate nonoffensive justifications, at best relying on "tradition."
Of course, the traditions that have been unsuccessfully invoked to defend anti-gay laws are often rooted in, or at least closely tied to, religious views. Concurring in the since-overruled Bowers v. Hardwick, the late CJ Burger wrote that "Judeo-Christian moral and ethical standards" were a sufficient basis for outlawing "homosexual conduct." But that was never a good argument. In a country with separation of church and state, religious doctrine is an insufficient basis for denying any group of people their basic rights.
However, religious exceptions appear to stand on a different footing. Someone who claims a religious exception from some general obligation does not say that her religious beliefs are a sufficient basis for public policy. She only asks that the contrary views of the majority not be the basis for compelling her to act or refrain from acting in a manner that contradicts her religious faith. Accordingly, there is a strong initial appeal to the move from religion as the basis for discriminatory laws to religion as the basis for opting out of laws combating discrimination.
Nonetheless, I believe that the right's shift towards seeking broad religious exceptions will fail, and may even be a strategic blunder on par with its opposition to LGBTQ rights in the first place. The reason is simple: Religion is not a trump card when the rights and interests of others are involved. Sure, the Supreme Court unanimously upheld a ministerial exemption from anti-discrimination law in the Hosanna-Tabor case. In my view, the Court erred by rooting that principle in the Constitution rather than in statutory construction, and I think the scope of the exception it recognized is too broad, but I understand the argument that the Catholic Church shouldn't have to ordain female priests as fundamentally different from the argument that a for-profit employer shouldn't have to provide contraception coverage or a for-profit florist shouldn't have to serve same-sex couples. In the one case, the exception is largely about the internal regulation of the religion; in the others, it's about interactions with the rest of society. There are borderline cases, of course, but the basic distinction is easy enough to grasp.
By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation.
Finally, even if social conservatives succeed in securing religious exceptions from laws securing equality for LGBTQ Americans, those exceptions will eventually become unusable. Even today, the federal RFRA and state-level equivalents would, in theory, permit people who hold religious objections to racial equality to resist anti-discrimination laws based on race. But virtually no one raises such claims because the same forces that made expressly racist views outside the mainstream of public opinion have made expressly racist religious views impermissible. Nearly all churches that once maintained such views no longer do so because religious views do not exist in a vacuum. Even (perhaps especially) "fundamentalist" religious views are formed in reaction to the broader social context.
Postscript: Readers should not infer from the foregoing that I am no longer pro-choice. For reasons that are connected to my views about non-human animals, I think that mid-to-late-term abortions of sentient fetuses raise serious moral issues, although I don't think that the immorality of (some) abortions necessarily justifies making them illegal. Professor Colb and I are working on a book that explores the complex connections between abortion and animal rights.
Continuing with the theme of religious exceptions to general laws that I explored on SCOTUSblog and here on DoL in connection with the pending Supreme Court cases on the ACA contraception mandate and RFRA, my latest Verdict column looks at the Arizona bill now on Governor Jan Brewer's desk that would expand the state's RFRA, and at similar bills around the country. As I explain in the column, these bills differ somewhat from each other. Whereas other state bills would explicitly license religious exceptions to laws forbidding sexual orientation discrimination, the Arizona bill would expand the state RFRA generally. If enacted, it would provide broader religious exceptions (including exceptions for for-profit businesses) from laws restricting race discrimination, protecting the environment, etc. Nonetheless, the clear impetus for the Arizona bill is the same as the impetus for the more expressly homophobic bills that have been introduced in sister states: Fear that people with religious objections to same-sex marriage or to homosexuality more broadly will have to set aside those objections to comply with anti-discrimination law.
The conclusion of the column (spoiler alert!) is that the Arizona bill (whether or not signed by Gov. Brewer) underscores the need for the expansion of federal anti-discrimination law to cover sexual orientation discrimination. Under the Supremacy Clause, federal protection against sexual orientation discrimination would supersede any state exceptions. To be sure, absent an explicit proviso, even a federal statute would be subject to the federal RFRA--and there's a risk that the SCOTUS will construe the federal RFRA to provide religious exceptions for for-profit businesses in the pending cases. Indeed, even without the federal RFRA, it may not yet be possible to secure congressional legislation from Congress expanding anti-discrimination law to cover sexual orientation without including a too-broad religious exception.
But the key word in the foregoing sentence is "yet." Given the long-term trend of public opinion, it is pretty clearly only a matter of time before sexual orientation discrimination is widely regarded as odious. Yes, there will be outliers, and they may never go away. Aftet all, it's 2014 and the Russian government is employing Cossacks as paramilitary, so history is long. But even now, social conservatives in much of the country are giving up on fighting against LGBTQ equality generally, and focusing their attention on securing religious exceptions. My question for today is this: Is that focus a strategic blunder?
To contextualize that question, consider the following vastly over-simplified account of the last 60 or so years of contestation around social issues.
The first great organizing tool for the creation of the modern socially conservative right was race. From signs calling for the impeachment of Earl Warren through Nixon's Southern Strategy, the modern GOP's aging base of white Southern Christians was built on prejudice against, and fear of, African Americans. Race retains potency today, but for at least the last several decades, open appeals to racism have been outside the mainstream of national politics. For a (long) time, they were coded by discussion of crime, welfare, affirmative action, etc., and those issues have not disappeared, of course. However, race has become only one arrow in the socially conservative quiver.
With the emergence of the modern women's movement in the 1960s and 1970s, social conservative activists rallied around opposition to the ERA, but even though they won that battle, they lost the war--a result that is not especially surprising: It's hard to "other-ize" half the population when they are your own family members.
To my mind, the most effective issue--indeed the only issue with real staying power--for social conservatives, has been abortion. Opposition to legal abortion is rooted for many people in views about the proper role of women, but that's not all it's about. It is possible to think that abortion raises serious moral issues while holding generally progressive views about sex and sex roles.
Accordingly, I believe that the socially conservative right made a strategic blunder when, roughly in the early 1990s, so much of its energy was diverted into opposing LGBTQ rights. Whereas opposition to abortion can be, and I'll admit often is, justified on the ground that it aims to protect innocent vulnerable life, opposition to LGBTQ rights was and is gratuitously mean. The point has emerged clearly whenever trial courts have sought evidence that might be used to support laws banning same-sex marriage or otherwise denying basic rights to LGBTQ Americans: The laws' supporters stumble to articulate nonoffensive justifications, at best relying on "tradition."
Of course, the traditions that have been unsuccessfully invoked to defend anti-gay laws are often rooted in, or at least closely tied to, religious views. Concurring in the since-overruled Bowers v. Hardwick, the late CJ Burger wrote that "Judeo-Christian moral and ethical standards" were a sufficient basis for outlawing "homosexual conduct." But that was never a good argument. In a country with separation of church and state, religious doctrine is an insufficient basis for denying any group of people their basic rights.
However, religious exceptions appear to stand on a different footing. Someone who claims a religious exception from some general obligation does not say that her religious beliefs are a sufficient basis for public policy. She only asks that the contrary views of the majority not be the basis for compelling her to act or refrain from acting in a manner that contradicts her religious faith. Accordingly, there is a strong initial appeal to the move from religion as the basis for discriminatory laws to religion as the basis for opting out of laws combating discrimination.
Nonetheless, I believe that the right's shift towards seeking broad religious exceptions will fail, and may even be a strategic blunder on par with its opposition to LGBTQ rights in the first place. The reason is simple: Religion is not a trump card when the rights and interests of others are involved. Sure, the Supreme Court unanimously upheld a ministerial exemption from anti-discrimination law in the Hosanna-Tabor case. In my view, the Court erred by rooting that principle in the Constitution rather than in statutory construction, and I think the scope of the exception it recognized is too broad, but I understand the argument that the Catholic Church shouldn't have to ordain female priests as fundamentally different from the argument that a for-profit employer shouldn't have to provide contraception coverage or a for-profit florist shouldn't have to serve same-sex couples. In the one case, the exception is largely about the internal regulation of the religion; in the others, it's about interactions with the rest of society. There are borderline cases, of course, but the basic distinction is easy enough to grasp.
By seeking religious exceptions from laws governing society very broadly, social conservatives are over-playing their hand. Past experience here is a useful guide. Slaveowners often made biblical arguments to justify slavery; yet nobody thought that once slavery was outlawed, there should be exceptions for people who held slaves as a matter of religious obligation.
Finally, even if social conservatives succeed in securing religious exceptions from laws securing equality for LGBTQ Americans, those exceptions will eventually become unusable. Even today, the federal RFRA and state-level equivalents would, in theory, permit people who hold religious objections to racial equality to resist anti-discrimination laws based on race. But virtually no one raises such claims because the same forces that made expressly racist views outside the mainstream of public opinion have made expressly racist religious views impermissible. Nearly all churches that once maintained such views no longer do so because religious views do not exist in a vacuum. Even (perhaps especially) "fundamentalist" religious views are formed in reaction to the broader social context.
Postscript: Readers should not infer from the foregoing that I am no longer pro-choice. For reasons that are connected to my views about non-human animals, I think that mid-to-late-term abortions of sentient fetuses raise serious moral issues, although I don't think that the immorality of (some) abortions necessarily justifies making them illegal. Professor Colb and I are working on a book that explores the complex connections between abortion and animal rights.
Subscribe to:
Posts (Atom)
Posts
