Tuesday, April 21, 2015

Are Lies About SSM, Abortion, and Economics Different?

by Neil H. Buchanan

Yesterday's Washington Post included an op-ed by Dana Milbank, "The New Argument Against Gay Equality: Same-Sex Marriage Kills," which describes and effectively dismantles an especially loopy new argument from someone named Gene Schaerr, who was a losing lawyer in Utah's SSM case.  (Schaerr is no minor player or local rube, by the way, having clerked for Justice Scalia.)  That the argument is nutty does not, of course, mean that it will lead to any embarrassed distancing by other people on the right; and, in fact, the Heritage Foundation held an event earlier this week in which Schaerr laid out what one might generously call his argument.

Here, I will briefly describe that non-argument.  This will be fun, in its way, but it is not difficult.  Indeed, Milbank does a great job on his own mocking Schaerr's claims.  Even so, Milbank missed one big possible defense by Schaerr.  After describing (and ridiculing) that possible defense, I will tie this argument back into my recent musings about lying and dishonesty by right-wing politicians in this country.  Although my earlier writings focused on arguments about taxes, it turns out that there is an interesting connection between these various deceptions.

Schaerr makes his argument in the form of a statistical claim: "nearly 900,000 more children of the next generation would be aborted as a result of their mothers never marrying."  Notwithstanding his decision to put a numerical estimate on the number of abortions, Schaerr admitted to Milbank that his argument "is still too new to do a rigorous causation analysis using statistical methods."  So, it is not really a numerical claim, but Schaerr is willing to say that the effect will be big, so big that he can put a big number on it with no factual underpinning.

Lacking actual statistical analysis, how does Schaerr get from SSM to that supposed increase in abortions -- especially given that, as Milbank points out, married gay couples are likely to adopt children, plausibly reducing the number of abortions?  (I am not saying that this cause-and-effect has been tested, either.  But we are now talking about hypotheses only.)

Schaerr's chain of illogic goes like this: gay marriage causes fewer opposite-sex marriages, which leads to more out-of-wedlock pregnancies, which leads to more abortions.  Sure, that sounds insane.  However, it does have the advantage of claiming to be evidence-based.  Even the most out-there statistical claims can be tested, and if the evidence turned out to be suggestive of unexpected connections, those connections would be worth pursuing.  No such luck, however, for Schaerr's desperation play.

There seem to be two statistical claims floating around Schaerr's argument.  He now asserts that U.S. states in which same-sex marriages have been legal have seen declines in marriage rates.  This is a replacement for a claim that was part of the State of Utah's arguments in its federal legal proceedings, that birth rates had fallen in states with SSM.  As Milbank points out, birth rates have been falling nationwide for some time, and the birth rates in Utah and Texas have actually fallen faster than birth rates in Vermont, Massachusetts, and Connecticut.

Milbank gathers similar statistics to debunk Schaerr's claims about marriage rates: "The national marriage rate declined to 6.8 per 1,000 in 2012, from 8.0 in 2002, before Massachusetts became the first state to legalize gay marriage. The Massachusetts rate dropped from 5.9 in 2002 to 5.5 in 2011, while Connecticut went from 5.7 to 5.5 and Vermont went from 8.6 to 8.3. But Texas and Utah, free of same-sex marriage, dropped from 8.4 to 7.1, and from 10.4 to 8.6, respectively."

Let us leave aside the complete failure to connect decreases in birth rates to increases in abortion rates.  Let us also ignore the many unstated and unsupported statistical connections between declines in marriage and increases in abortions.  (And, of course, let us not fail to note that Schaerr's argument has the effect of causing the discussion to rush past his central claim, equating abortion and "killing.")  What Milbank fails to consider is the miraculous power of all bad things to affect everything around them, in the past, present, and future.

A core argument from the likes of Schaerr, after all, has been that simply knowing that same-sex couples are marrying degrades the value of marriage among heterosexuals.  Surely, state borders are not enough to block the dispiriting knowledge that SSM is on the march nationwide, or to prevent that trend from upsetting people in red states.  Maybe straight people in Utah and Texas are so distressed by what is happening elsewhere, and so worried about SSM coming to their home states, that they began shunning marriage in anticipation of the inevitable.

Of course, this argument also has the virtue of explaining any declines in marriage and/or birth rates before even Massachusetts allowed same-sex marriages: People knew for years that this was coming, and so the lack of apparent cause-and-effect in real time is really a matter of people anticipating future events.  After all, given that people on the right continue to rage against "the Sixties," maybe the Beatles' "Revolution" and "Lucy in the Sky With Diamonds" somehow set this all in motion.  (No comment needed regarding the Rolling Stones' "Let's Spend the Night Together.")

We have, in fact, recently heard a version of this very argument.  After the mid-term elections last Fall, when the economic reports began to show that the economy had been improving for months, notwithstanding the supposedly ill effects that President Obama and Senate Democrats were having on the country, rising Senate Majority Leader Mitch McConnell had a ready answer: The economy started to improve earlier in 2014, because people suspected that the Republicans were going to do well in the November elections!

As I noted at the beginning of this post, the illogic of Schaerr's argument provides fresh insights into the arguments that I have made in three of my most recent Dorf on Law posts (here, here, and here).  In those posts, I have described deliberately misleading statements as "lies," "deceptions," "distortions," and similar terms.  Two of my examples have been Republicans' invention and repetition of the terms "IRS Code" to describe the tax code that Congress enacted (diverting public anger toward the agency that tries to administer Congress's mess), and "death tax" to describe the federal estate tax.

As always, calling out any particular deception has brought forth some halfhearted defenses.  "IRS Code" is not really misleading, I am told, because everyone knows what it means.  Similarly, I should see that"death tax" is not exactly a lie, because it is a tax that is collected at death.

It is true that some lies are more bald-faced than others, but that does not make them any less deceptive.  If anything, the whole point of dressing them up is to make them more deceptive.  For example, Milbank quotes a Heritage staffer claiming that "every nation and every state that have redefined marriage have seen their marriage rates decline by at least 5 percent after that redefinition, even as the marriage rates in the rest of the states remain stable."  I have not looked at whatever data to which he might be referring, but I recognize weasel words like "stable" when I see them.

When I enrolled in law school, I was a literalist when it came to lying.  My attitude was not George Costanza's famous "it's not a lie if you believe it" line from "Seinfeld," but rather that so long as one says nothing that is, in isolation, a literal falsehood, then one is not lying.  "Sorry that I cannot go to your party.  My car broke down again."  How clever not to add that the car has already been fixed!

As I have noted in various places, law school had the counter-intuitive effect of making me less likely to rationalize lies with half-truths.  If I really did not want to go to a party, and I did not want to tell the host why not, I realized that there was really no moral high ground to saying, "Well, I didn't actually lie."  That is why rules for perjury, standards for "good faith and fair dealing" in contracts, and professional ethics rules are written more broadly than "no literal falsehoods allowed."  Even the familiar courtroom witness's oath to tell "the truth, the whole truth, and nothing but the truth" captures the need to prevent serious arguments from descending into absurd gamesmanship.

Similarly, legal standards often include an inquiry into whether a party "knew, or should have known" how his statements would be understood.  Regarding the estate tax, I have written in the past (e.g., here and here) why "Well, it is a tax at death" and similar arguments do not work.  My point here is simply that even political arguments can and should be held to a standard higher than "not literally a bald-faced factual falsehood."  Notwithstanding our cynicism about "lies, damned lies, and statistics," defaulting to the lowest standards is no better than having no standards at all.

12 comments:

Joe said...

"Bullshit distracts with exaggeration, omission, obfuscation, stock phrases, pretentious jargon, faux-folksiness, feigned ignorance, and sloganeering homilies. When Dubya speaks of freedom and liberation, and claims to be praying for peace as the army disgorges load after load of bombs, he is not lying. He is bullshitting. A lie would be easier to disprove. Bullshit is a committee-drafted simpleton's sermon about evildoers and terra and freedom being God's gift to all men."

-- Laura Penny, Your Call Is Important To Us: The Truth About Bullshit

Ben Alpers said...

"Just remember, Jerry. It's not a lie...if you believe it."

-- George Costanza, Seinfeld

egarber said...

So did the institution of marriage implode after Loving? Did marriage rates decline because of the "taint"?

So much to be baffled about here. I mean, how can anybody just blow by the obvious explanations on the way to this absurd conclusion? If marriage rates are lessening, we should start with relative gender equality - i.e., career-minded women have many more choices now, etc. Or at least something logical.

You might as well connect say, the rise of ISIS and gay marriage. Jeesh.

egarber said...

And as a matter of hypothetical logic, isn't the opposite argument arguably stronger? I doubt the reason a majority of Americans favor same-sex marriage is that they're just punting on the whole notion. If anything, my guess is that they see it as affirmation, in that people are fighting for a right most take for granted. In other words, the whole thing is a reminder of the institution's value and importance.

Joe said...

"we should start with relative gender equality"

A basic change in "traditional" marriage that along with other things changing marriages more than SSM will overall but "traditional" marriage in some people's eyes only means one thing.

Greg said...

This post is an excellent example of the kind of misrepresentation that can be legitimately referred to as a lie even if it isn't perfectly factual. If there is no numerical basis for the 900,000 number then it was made up, and thus legitimately can be called a lie. I'm even willing to give ground on "even if the person claiming it believes it to be true," since this individual admits that they don't have evidence to support that number.

However, after reading the prior posts on the death tax nomenclature (particularly the 2007 one) and the comments there, I am more thoroughly convinced by people both more eloquent and more educated than I that the term death tax is not a lie.


THAT SAID... I think it perhaps makes more sense to talk about who should or should not be using the term.

Politicians who want to bring about repeal of the estate tax (to be generous, let's say because they believe it will benefit their constituents) will use the term death tax because it helps to convince others that repeal is a good idea. Using reasonably accurate but politically charged words in order to convince others is part of doing their job. This is no different than a prosecutor consistently referring to the accused as "the defendant" rather than by their name.

Politicians who want to keep or even expand the estate tax should not call it a death tax. Instead, they might choose to use "wealth tax" or something else that emphasizes that it is a tax levied only on the wealthy.

Journalists should use the most accurate and least politically charged term available (sometimes in conflict) which in this case is the "estate tax" or the "Estate (and Generation-Skipping Transfer) Tax." I would agree that any journalist who uses the term "death tax" in a context other than a quote could reasonably be described as being misleading or at a minimum editorializing, but even there it would probably be pushing it to call use of the term "death tax" a lie.


I guess the larger point is this. As academics we prefer to use precise language. We want literally to continue meaning literally, and not figuratively. For politicians, language is more fluid as their role is not to describe or enlighten, but to persuade. As such, they use more expressive and less precise terms, including death tax. To be pedantic about such use (or worse, to accuse politicians who use such language of lying simply for their choice to use a generally understood, if inaccurate, word) distracts from the real lies and falsehoods that the word is hiding, and makes the accuser seem petty. Many people find it better to confront the real lie, rather than use of the word itself.

That said, journalists should know better, and are legitimately subject to ridicule for not being careful about choosing more neutral words.

Neil H. Buchanan said...

"... to accuse politicians who use such language of lying simply for their choice to use a generally understood, if inaccurate, word ... " That would be a lot more convincing if those politicians had not invented the deliberately inaccurate term, and if they had not then done everything possible to make that term "generally understood." Not guilty by reason of successful distortion of discourse?

Shag from Brookline said...

Over at Balkinization there is an interesting video of a "debate" between Jack Balkin and Martin Redish on "Is the First Amendment Being Misused as a Regulatory Tool?" During the Q & A (starting at about 1:18:00) Redish identifies as fraud lies of a politician used to raise funds or votes that should not be protected by the 1st A. (Redish is a big defender of commercial speech.) Balkin sees the 1st A as protecting the politician.

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